JCL ID Solutions Ltd v Williams & Ors [2009] EWHC 932 (Ch)

Case No HC0703104[2009] EWHC 932 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 February 2009
Before
Mr A.G. BOMPAS QCsitting as a Deputy Judge of the High Court
Between
JCL ID SOLUTIONS LIMITEDClaimant(1) CLINT JOHN WILLIAMSDefendants(2) GLOBAL IDENTIFYING SOLUTIONS LIMITEDDefendant
Mr Robert Strang (instructed by Russell Jones & Walker) for ClaimantThe First Defendant in person and as an officer of the Second Defendant for in personHearing Hearing dates : 8, 9, 10, 11 & 12 December 2008
JudgmentThe Deputy Judge :Introduction
[1]The First Defendant, Mr Clint Williams, is a 40% shareholder in the Claimant company, JCL ID Solutions Ltd (“the Company”). He was a director of the Company until his resignation on 7 February 2008.[2]The Company was incorporated on 31 March 2006 with an authorised and issued share capital of £100, there being three shareholders (also the subscribers to the Memorandum of Association) and two directors. Mr Williams from the start had his 40% shareholding and was a director. The same is true of Mr Philip Endacott. The third subscriber and shareholder is Mr John Cullen.[3]In form the Company’s claim against Mr Williams is for various sums said to have been drawn by, advanced to, or diverted from the Company by, Mr Williams. The Second Defendant, Global Identifying Solutions Ltd (which I shall call “Global”) is sued as the recipient of the diverted sum.(1) The diverted sum (which I shall call “the ICICI Bank payment”) was £38,774.50 (made up of £33,000 and VAT), the amount of two invoices: the Company would nevertheless allow a credit of £8,000 for a sum paid by way of commission to Mark Dodshon.(2) £19,500 is claimed as repayment of a loan to Mr Williams.(3) £5,796.50 is claimed in respect of drawings made, and expenditure incurred by Mr Williams and paid, on a company credit card.(4) A further amount is sought in respect of other payments to Mr Williams. The claim for this amount I refer to as “the excessive drawings claim”. Broadly this is a claim for the difference between the amount drawn by Mr Williams from the Company, effectively as remuneration, and the amount to which he was properly entitled as remuneration. An appreciation of the basis on which this further amount is claimed requires a detailed explanation of the way the Company operated and was managed during its life. For present purposes it is sufficient to note that quantification of this amount, if the excessive drawings claim is justified, will require the taking of an elaborate account. Indeed, the written argument prepared on behalf of the Company at the outset of the trial suggested that in certain circumstances “this issue is likely to fall away in large part”. But the claim has not been abandoned.[4]Connected with the ICICI Bank payment the Company seeks declaratory relief. The declarations concern two separate transactions, one with HBOS plc (for BOS Treasury Services) and the other with Standard Bank. The Company claims that the fees payable in respect of these transactions are payable by those client companies to the Company rather than to Global (as claimed by the Defendants). The HBOS fee has, in fact, already been paid to the Company; the Standard Bank fee remains outstanding.[5]At the trial evidence was given by each of Mr Endacott, Mr Cullen and Mr Williams. Other witnesses who gave evidence were Mr Michael Hiard, Ms Lesly Balcombe and Mr Mark Dodshon.

Outline of the facts

[6]The Company was a joint venture company. It was to carry on business as an executive search and recruitment agency: client companies trading in the financial sector would engage the Company to find staff, the Company being paid by the client a fee on successfully finding and placing a candidate with the client. Typically the fee was based on the annual salary of the candidate.[7]Mr Williams had been in the recruitment business for many years. He had developed connections in the field of foreign exchange and treasury business. Mr Endacott, on the other hand, was a relative newcomer to the recruitment business, having started only in 2004. Before that he had worked in sales and marketing, and also for about five years on trading desks, operating in the securities finance and related businesses of international investment banks. Mr Endacott had, from his career in banking, developed connections in the securities finance sector.[8]By 2005 both Mr Endacott and Mr Williams were working for a recruitment company called JCL Allenby Hunt Ltd (“Allenby Hunt”). At this time Mr Endacott was an employee, seeking to help Allenby Hunt to develop its field of business into the securities finance sector. Mr Williams was working for Allenby Hunt on a commission basis: his services were provided through Global, which would charge Allenby Hunt a fee for successful placements effected by Allenby Hunt acting through the contact and agency of Mr Williams. Allenby Hunt was one of a number of companies with “JCL” in their name. Another was JCL Legal Ltd. These companies, as I understand it, are to a greater or lesser degree connected with Mr Cullen, and may loosely be considered to be part of a network of companies owned or controlled by him.[9]Global is a company whose shareholders were until late 2007 Mr Williams’ wife and Mr Williams’ brother: the shares were then transferred to Mr Williams. Mr Williams became sole director on 3 September 2007; before that from March 2006 Mr Endacott had been a director of Global. However, to all intents and purposes Global was Mr Williams’ company. Mr Endacott become a director of Global because, like Mr Williams, he was concerned that Mr Cullen might at some time decide that the Company no longer fitted with his business model and, as he says, planned that, in the event of the Company being wound up, “we could move our business into another vehicle … [and] at least keep a similar name”.[10]Mr Endacott says, however, that he believed Global to be dormant. Certainly, he never himself did anything as a Global director until his resignation. But her certainly did know that Global was being used by Mr Williams for business activity. As I find:(1) From December 2006 onwards Mr Williams was trying to recover some £7,350 plus VAT in respect of expenses said by him to have been incurred by Global on the Company’s behalf. At about that time he caused Global to issue an invoice for the £7,350, an invoice which Mr Endacott saw in early 2007 at the latest, having become aware of Mr Williams’ claim on 14 December 2006. Not only does the claim feature in email correspondence starting on 14 December 2006 described in Mr Endacott’s first affidavit, but it is referred to on a spreadsheet prepared by Mr Endacott and dated 10 April 2007: there it features under the legend “£7,350.00 Global ID Solutions”. At all times after December 2006 Mr Endacott refused to allow the Company to meet Mr Williams’ claim.(2) Furthermore, it is Mr Endacott’s evidence that at a meeting on 19 December 2006, referred to later, Mr Williams was asking for a loan to help him meet a significant tax liability in Global.(3) Later still, during the first half of October 2007 both Mr Endacott and Mr Cullen referred in emails to Global in a way which conveyed that they knew that company then to be pursuing recruitment business.[11]At the end of 2005 Mr Williams and Mr Endacott decided to start the Company as a new venture. They appear to have contemplated that they could do better, keeping a larger share of the income generated by successful placements of candidates made by them and by having low overheads, if they worked through their own company. They clearly envisaged that the Company would not have a centre of operations where they would meet and from which they would work. Rather their work was envisaged as being essentially carried on on the move and involving contacts made over the phone and portable communication devices and meetings at clients’ offices. Until about April 2007 Mr Williams for his part did indeed use, for his file-keeping and desk, an office in his home.[12]These two protagonists were not, however, completely severing their connection with the JCL organisation when they started the Company.(1) First, their new venture would make some use of the “JCL brand”, by keeping the initials “JCL” as part of the name and logo.(2) Second, they were to make use of the address, office, phone connections and administration of the JCL organisation.(3) Third, and most importantly, Mr Cullen joined them as a shareholder and participant in their venture.(4) Fourth, they had some informal but amicable arrangement with Allenby Hunt by which they were to be able to continue working on placement projects already in progress on terms that they would share with Allenby Hunt a proportion of any fee earned on those projects. It was clearly envisaged by Mr Cullen that there would also be “cross-selling”, with Allenby Hunt and the Company where appropriate promoting the other and redirecting work falling within the other’s particular area of operations and expertise.[13]Mr Cullen’s position in the Company is not straightforward.(1) He is, and has all along been, the company secretary.(2) He has never been appointed to be a director; yet with Mr Williams and Mr Endacott he was one of the three signatories on the Company’s bank account with Clydesdale Bank, having signed purportedly as a director the resolution of the Board, passed at a meeting on 20 April 2006, giving the mandate.(3) As appears from what follows, he did sign cheques drawn by the Company, the operation of the Company’s account requiring signature “by any two directors for the time being”. Typically the cheques he signed were to reimburse expenses to Mr Endacott.(4) He was very much involved in the unfolding events as the relationship between Mr Endacott and Mr Williams deteriorated. By way of example, he must have signed a cheque drawn on the Company for £50,000 on about 9 November 2007, at a time when the Company was about to be put in motion to obtain a freezing injunction against Mr Williams.(5) The evidence given by Mr Endacott concerning his reason for becoming a director of Global demonstrates the importance of Mr Cullen for the Company’s future: according to Mr Endacott he and Mr Williams envisaged Mr Cullen as having power to put an end to the Company once he had decided that it no longer fitted with his business model.[14]I am willing to accept Mr Cullen’s oral evidence that he was “not highly active” in running the Company. But I also consider that Mr Cullen’s evidence was distorted in relation to his activity in relation to the Company: he had much more involvement than he likes now to admit, even to himself. In particular during 2006 he was very much involved in decisions about the Company’s strategy, and after 2006 he was kept abreast of the deteriorating relations between Mr Endacott and Mr Williams. Indeed from July 2007 he was allied with Mr Endacott, taking the latter’s part in his dealings with Mr Williams and the initiation of these proceedings.[15]I refer later to Mr Cullen’s evidence concerning an important meeting, held on 18 September 2006, between himself, Mr Williams and Mr Endacott to discuss, according to his words in his contemporaneous memorandum “the status of the business and the way forward”. Another important meeting involving Mr Cullen was held at the end of July 2007.[16]The Company has followed a short trajectory. Over the summer and autumn of 2006 the Company made a total of eight successful placements of candidates for employment. Two of these placements involved run-over business from Allenby Hunt, with a little over 30% of the fee being passed on to Allenby Hunt under a fee-sharing arrangement agreed with Mr Cullen. The consultant on these two placements was recorded in the Company’s system of recording successful placements for billing purposes as having been Mr Williams. This system I describe later in this Judgment.[17]The first income of the Company, some £75,000 plus VAT received in June 2006, was in respect of one of these. The other six placements during 2006 were recorded as having Mr Endacott as the consultant; but it is common ground that in relation to one, with Paloma Partners and for which the Company received a fee of £77,000 plus VAT, Mr Williams played a material part.[18]Mr Michael Hiard, to whom I have already referred, worked with Mr Endacott to bring in the Paloma business, as well as business with Wachovia Met West with whom the Company effected a placement in July 2006. In late May 2007 Mr Hiard was paid £50,000 in respect of these two placements, amounting to 35% of the fees received by the Company for the two placements.[19]At the end of July and early August 2006 Mr Endacott took a fortnight’s absence. He says in his written evidence that this was “to confront my concerns about my lifestyle and particularly my drinking and lack of exercise. … I booked a two week stay at Linwood Manor to complete a full detox programme …”. Linwood Manor is a residential alcoholism treatment centre offering detox and rehabilitation programmes. Mr Endacott says that nevertheless during this period of absence he was continuing to take some calls and deal with clients, although not face to face, and also to speak with Mr Williams on a more or less daily basis.[20]Mr Williams disputes the extent of Mr Endacott’s contact with the business during this period, asserting that in effect Mr Endacott was completely out of communication, leaving Mr Williams to continue to run the Company’s business, dealing with clients and candidates.[21]I conclude, so far as necessary, that during the period of Mr Endacott’s absence he did indeed have some continued involvement in the Company’s business and with clients, but that inevitably the practical burden of pursuing the Company’s activities fell to Mr Williams. I return to this later.[22]The real point of the episode is that it marks the start of an issue which clearly caused Mr Williams increasing concern, and became a source of considerable grievance between the two men. As matters developed Mr Williams increasingly criticised Mr Endacott for his drinking, repeatedly in correspondence making disparaging remarks about Mr Endacott’s use of alcohol. It is not necessary to decide how far they may have been a factual basis for Mr Williams’ criticism, and if there was any such basis how far (if at all) Mr Endacott’s capacity to work was affected. What is obvious is that Mr Williams genuinely thought there was a real problem. He was unrestrained in what he said about it. Hardly surprisingly, Mr Endacott did not appreciate Mr Williams’ comments.[23]On 18 September 2006 there was the meeting to which I have already referred.[24]On 19 December 2006 Mr Williams met with Mr Endacott, Mr Cullen and Mr Hiard. At this meeting Mr Williams was asking to have money. Quite what Mr Williams said it was for has been in dispute. The upshot nevertheless was that a cheque for £19,500 in favour of Global and signed by Mr Williams and Mr Endacott was drawn on the Company. The Claimant’s case is that this was a personal loan from the Company to Mr Williams. Mr Williams’ case is that the payment represented an advance on his salary and is not repayable.[25]During 2006 numerous other cheques had been drawn in favour of each of Mr Williams and Mr Endacott, but without any obvious pattern. Those for Mr Williams tended to be more frequent than for Mr Endacott; but those for Mr Endacott tended to be for greater amounts. This continued during 2007. It is possible discern that from about October 2006 to August 2007 Mr Williams was being paid a monthly sum of either £5,000 (the last three payments in 2006), £3,500 or £3,000. These will have been by cheques signed by him and Mr Endacott. It is possible to infer from the payments made that over the comparable period Mr Endacott was receiving a monthly sum of £5,000. Mr Williams’ last receipt of this kind was in mid-August 2007: he received nothing as salary for August or September 2007, although on 1 October 2008 he was still asking to be paid. Mr Endacott, on the other hand, took £15,000 on 27 September 2007.[26]From 24 October 2006 to 12 March 2007 no successful placements were made by the Company. There were then two placements in respect of which Mr Endacott was named as the consultant, two placements in April 2007 in respect of which Mr Williams was named as the consultant, and finally, between 16 April and 17 June 2007, three placements in respect of which Mr Endacott was named as the consultant; the fee for these three placements was received in June, in July and on 10 October 2007.[27]The placements which form the subject of the disputed diversion claim (in relation to each of which Mr Williams rather than Mr Endacott was undoubtedly lead consultant) were successfully made over the period from about August 2007 on: these involved four candidates. Mr Williams denies that in these cases he was acting on an engagement between the clients (ICICI Bank in respect of two of the candidates, HBOS and Standard Bank) and the Company; he says that it was Global which had contracted with the client to find the candidate.[28]Leaving aside these four placements, no placements were successfully made by the Company after June 2007; at any rate that is the evidence of Mr Williams and Mr Dodshon. Ignoring the ICICI Bank payment and the HBOS fee, the last income received by the Company was(a) a fee in July 2007 for a placement made in November 2006; and(b) a fee received on 10 October 2007 for a placement made in June 2007. In relation to this last placement, on 19 June 2007 the client emailed Mr Endacott requesting an invoice. On 16 August 2007 Mr Williams drew to Mr Cullen’s attention that a “very large invoice” was to go out for this placement “which Pip is presumably sorting out with Lesly”. On 24 August 2007 the client forwarded a copy of the email of 19 June 2007 to Mr Williams, who acknowledged the client’s request; and Mr Williams sent Mr Cullen a copy of the email exchange on 7 September 2007, and again referred to it in his email to Mr Cullen of 1 October 2007. It is not clear when, eventually, the invoice was sent or why it took so long.[29]On 26 July 2007 there was a meeting between Mr Williams, Mr Endacott and Mr Cullen. At this meeting Mr Cullen explained that Allenby Hunt had taken on a new consultant and was contemplating expanding into the area of activity covered by the Company. Mr Endacott for his part expressed an intention to leave recruitment and to return to banking.[30]At around this time, according to Mr Endacott, a call was put through to him from the Clydesdale credit card fraud department with a concern that the pattern of spending on one of the Company’s credit cards suggested the card had been stolen. As a consequence, says Mr Endacott, he carried out a review of the credit card statements with Mr Cullen and Ms Balcombe (a financial controller employed by the JCL group who had looked after the Company’s bookkeeping and accounting) and asked Clydesdale to withdraw the credit card facility immediately.[31]In his first affidavit in these proceedings, made on 13 November 2007, Mr Endacott dated the telephone call to 24 August 2007. In a statement made to the Police on about 2 November 2007 he dated the telephone call to the middle of August 2007. In his last witness statement in these proceedings, made on 30 November 2008, Mr Endacott dated the telephone call to 30 July 2008. The last purchase or cash withdrawal made on the card was 30 July 2007, so that it seems probable that Mr Endacott’s third version is correct in dating the cancellation of the facility to the end of July 2007.[32]However it is likely that the examination of Mr Williams’ credit card expenditure had already started well before the end of July and certainly before 26 July 2007.(1) In the first place Ms Balcombe was away from work for a period of some weeks after 26 July 2007 following an injury suffered by her husband.(2) In the second place in an email exchange from mid-March 2007 Ms Balcombe had been asking Mr Williams about the Global invoice and credit card expenses and seeking vouchers. Indeed, her evidence is that this is something she had been pursuing even in 2006.(3) In the third place Mr Endacott explains in his witness statement how in March 2007 he had “first set-up [a spreadsheet showing the Company’s revenue and outgoings] on the back of concerns I had about Clint’s revenues and outgoings, and I updated it on a regular basis, and sometimes Lesly would help”. And he goes on to explain how he had become extremely concerned following an up-date of the spreadsheet made by him and Ms Balcombe on 17 July 2007.(4) Fourthly, in his written evidence Mr Cullen explained that at the meeting on 26 July 2007 “we also discussed the use of the company credit card and the need to provide receipts before any expenses could be paid. Lesley (sic) had informed me that, despite repeated requests, Clint had failed to provide receipts for significant charges on his card, running into thousands of pounds.” That there was some such conversation is confirmed by Mr Cullen’s subsequent email to Mr Williams sent on 13 August 2007.[33]At the end of July 2007 Mr Williams had difficulty obtaining a cheque for his July 2007 salary. A cheque, number 55, dated 28 July 2007 for £3,000 and signed by Mr Endacott was posted to him in an envelope post-marked 30 July 2007. Included with this was a brief note saying “Here we go … Let me know what you want to do re JCL IDS matey. Your call since it was your name and happy to discuss ideas.”[34]The letter was delayed in the post; and Mr Williams says that it was already overdue and long-promised when it was posted. At all events the cheque was stopped and a replacement was issued in early August 2007 and cashed. But, later, in about the middle of August 2007, the letter with the cheque was delivered to Mr Williams.[35]By August 2007 at the latest, and probably before that, Mr Endacott had lost any confidence in the joint venture being able to continue in a way which was satisfactory to him: his perception was that he was subsidizing Mr Williams, the latter having the Company pay him out of money earned by Mr Endacott. It also appears that after July 2007 Mr Cullen was disillusioned, being persuaded by Mr Endacott of much the same thing. My impression is that by this time, indeed by the time of the 26 July 2007 meeting, Mr Endacott and Mr Cullen were looking for a way of parting from Mr Williams. This would explain the things they told him at the meeting.[36]Matters then came to a head at the end of August 2007, following correspondence between the parties in the first half of the month in which pressure was put on Mr Williams to explain himself as regard credit card expenses and to repay sums said to be due to the Company.[37]On 28 August 2008 Mr Williams sent to Clydesdale Bank a fax bearing the Company’s name and giving various instructions to the Bank. The instructions were for(a) an immediate transfer of £55,000 from the Company’s current account to its reserve account,(b) a lifting of the stop on cheque 55 “which will be paid in today” and(c) a payment of £21,737.50 for immediate value to the account of Global “per attached mandate”. The faxed instructions as received by the Bank bore a faxed copy of Mr Williams’ signature and what purported to be a copy of Mr Endacott’s signature. At the time the fax was sent Mr Endacott knew nothing of it. The “accompanying mandate” was the customer copy of a CHAPS – Same Day Transfer request form instructing a payment of £21,737.50 in favour of Global. It indicated that the payment details were to be “Reference: Invoice 001058”. The contact name given was that of Mr Williams and the contact telephone number was that which connected from the JCL organisation to Mr Williams’ phone. The CHAPS form, like the covering fax, bore the faxed version of Mr Williams’ signature and what purported to be a copy of Mr Endacott’s signature. It is common ground that on the originals of the documents which Mr Williams faxed to the bank he had made a reproduction of Mr Endacott’s signature, and had done that without the latter’s knowledge. Bluntly, Mr Williams had forged Mr Endacott’s signature.[38]A notation on the CHAPS transfer form is “28/8 Incorrect form. Advised client that need PI of form to be able to process.” This is followed by the notation “29/8 Clint advised CHAPS no longer required as not so urgent – C2 will be issued”. A possible inference from this notation, confirmed by Mr Williams in cross-examination, is that on 28 August 2008 the Bank phoned Mr Williams with a message explaining a problem with the faxed documents, so far as concerned the CHAPS payment, and that on the following day Mr Williams phoned and spoke to the Bank to invite the Bank to do nothing further about the CHAPS payment.[39]The Company contends that on 28 August 2008 Mr Williams had falsified Mr Endacott’s signature to obtain payment for himself and Global from the Company’s bank account, and that Mr Williams’ call to the Bank on 29 August 2008 was to prevent his attempt to bring about the payment of the £21,737.50 by the faxed documents coming to the attention of Mr Endacott. Mr Williams’ explanation is discussed below.[40]In the event no money was paid by the Bank on the instruction in the fax. In particular the stop on the cheque was permanent and could not in fact be lifted; and the CHAPS instruction was never acted upon. The Company paid nothing as a result of this, with the consequence that the whole episode is largely irrelevant, being material only for the light it sheds on Mr Williams.[41]However it is relevant to note that as long ago as December 2006 Mr Williams had submitted the Global invoice which I have referred to earlier. This was dated 27 November 2006, bore the number 001057, and was addressed to the Company and seeking in respect of “Professional fees for recruitment and human resources consultancy. Fees as agreed" some £7,350 plus VAT. This was exactly the same language as used on the invoices, numbers 001053 to 001056, which Global had in previous years provided to Allenby Hunt for commissions for placements achieved by Mr Williams. Mr Williams says that invoice 001057 was for expenses which had been incurred in his pursuit of business for the Company.[42]Also relevant to note is that at about the end of August or early September 2007 a Global invoice dated 29 August 2007 was produced with number 001058 in the sum of £11,150 plus VAT. This used the same legend as the previous invoices. The total amount sought on invoices 0010507 and 0010508 was £21,737.50, the amount on the fax and CHAPS form of 28 August 2007. The invoice is referred to in Mr Williams’ email of 4 September 2007, mentioned later in this judgment, as being one “to cover costs (invoice to follow) from one company into another”.[43]Mr Williams’ communications with the Bank of 28 and 29 August 2007 became known to Mr Endacott, when he received a telephone call from the Bank. He went with Mr Cullen to the Bank, there being shown the documents; and he and Mr Cullen later discussed the matter with Mr Williams.[44]Quite obviously, by the beginning of September 2007 relations between Mr Endacott and Mr Williams were beyond repair. This Mr Williams must now have understood. The email correspondence passing between these two, and also between them and Mr Cullen, from September 2007 on demonstrates that co-operation between Mr Endacott and Mr Williams had come to an end and that they were intent on separating their business; the question was whether they could agree terms. Mr Endacott’s oral evidence was that by September 2007 he was clear that the Company could not continue. This was said in connection with a proposal then being made to Mr Williams to allow him to have clients pay Global for successful placements achieved by Mr Williams, if a settlement was agreed. This proposal I now turn to.[45]One of the matters Mr Cullen and Mr Endacott discussed between themselves at the end of August 2007 was whether it was appropriate to involve the Police. By email dated 31 August 2007 Mr Cullen told Mr Endacott that, having spoken to a lawyer, “we are not to mention police at this stage to Clint”.[46]Mr Endacott took a different view. On 4 September 2007 Mr Endacott, having met with Mr Williams the previous day, sent to Mr Williams an email which outlined various complaints, including in relation to Mr Williams’ dealing with the Bank at the end of August and in relation to “Credit Card abuse”. The email proposed Mr Williams’ immediate resignation as a director, required his promise to repay the £19,500 and further recompense for excessive drawings, and suggested that on that basis Mr Williams might be able to go his own way albeit retaining some of the work he might have in the pipeline. The email referred to advice which had apparently been obtained from the Police, and concluded with the threat “I am extremely angry about the deceptions that have taken place and of course ultimately in the final criminal acts themselves so please be under no illusion that we will proceed if any additional ‘occurrences’ come to light going forward”. The email also said “We will terminate your employment and directorship of [the Company] this afternoon and would ask that from the time of acceptance of this mail you will cease to speak to new clients as JCL IDS”.[47]Over September and October 2007 there was sporadic email correspondence between the three protagonists. In this all were agreed that a mutually acceptable separation should be agreed on quickly. The problem was that Mr Endacott and Mr Cullen were saying that Mr Williams was significantly in debt to the Company and should repay this debt and give an explanation of his drawings, failing which “all relevant documentation will be delivered to and dealt with by the relevant authorities as advised”; while on the other hand Mr Williams was denying any debt to the Company. He was saying that his shareholding in the Company was valuable, and that value should be reflected in any settlement agreed on. And, connected both with this, and with the claims being made by Mr Endacott and Mr Cullen, was a great difference separating the parties as to what had been agreed for the remuneration of Mr Endacott and Mr Williams.[48]Mr Cullen met a couple of times with Mr Williams to seek to reach an amicable agreement concerning the way forward for the parties; and on 18 October 2007 he sent an email to Mr Williams setting out what he described as the final offer from Mr Endacott.[49]At about this time, according to Mr Cullen in his oral evidence, in a meeting he renounced any return from the Company in respect of his shares. Mr Cullen says he has now given up his rights. So far as he is concerned, according to his oral evidence, he no longer has any financial interest in the Company, leaving in substance Mr Williams and Mr Endacott as the two equal shareholders.[50]The next part of the chronicle involves Mr Dodshon. In about March 2007 Mr Williams had taken him on to work in finding clients and in finding and placing candidates. After about a month Mr Williams moved his office space from a house to rented accommodation at 22a Hockrill Street, Bishops Stortford. The tenant of this accommodation appears to have been Global. Mr Dodshon says that in the period from March to the start of September 2007 he knew nothing of Global and thought he was working for the Company; initially he expected to be made an employee, but later he took it that he would work as a self-employed consultant receiving commission for successful placements. In an email of 16 August 2007 Mr Williams had told Mr Cullen that he wanted to ensure that Mr Dodshon was paid “as an employee who has worked his nuts off for us over the past six months without receiving a penny.”[51]For his part, Mr Endacott during 2007 engaged an assistant to work with him for the Company. This was a Mr Mark Proffitt. It would seem that his engagement had some symmetry to that of Mr Dodgson.[52]Mr Dodshon’s evidence, however, was that at the start of September 2007 Mr Williams told him that he was going his separate way from Mr Endacott and that now Mr Williams and Mr Dodshon were working for Global. Mr Dodshon says that for those two months he thought he was working for Global. Certainly the correspondence passing between Mr Williams, Mr Endacott and Mr Cullen during the period involved continued exchanges of recriminations, demands, threats or proposals, without suggesting that either Mr Williams or Mr Endacott was continuing to pursue any business on behalf of the Company. On the contrary, it was clear that all that was under consideration was the basis on which the joint venture was to be terminated. So, for example, in an email dated 3 October 2007 to Mr Williams, Mr Endacott referred to Global as “this entirely separate business that we now understand you are running with Mark Dodson (sic)”.[53]Meanwhile, by an email of the following day to Mr Endacott, Mr Proffitt said how hard he had been working to build up business within the Company but that “these efforts cannot lead to results whilst we are waiting (and waiting) for a resolution to the CW situation”; and he threatened to leave in the absence of a swift resolution.[54]The next event of note was in the second half of October 2007. In August and September 2007 two candidates had been successfully placed with ICICI Bank. These two were placed as a result of the efforts of Mr Williams assisted by Mr Dodshon. One started working for that bank at the start of August 2007, ICICI Bank having made an offer of employment on 11 July 2007, and the other started work on 24 September 2007 having been the subject of an introduction the previous month.[55]In the papers before the Court Mr Williams has produced two Global invoices, both dated 24 September 2007, respectively for £15,500 and £17,500 plus VAT (ie £18,212.50 and £20,562.00) seeking payment to an account number 92188665 (being the number of Global’s account with HSBC Bank) One of the invoices is numbered 001059 and the other 001062: Global invoice 001060 is dated 1 November 2007 and was sent to HBOS (to BOS Treasury Services) in respect of the HBOS placement; and Global invoice 001061 is dated 21 January 2008 and is addressed to Standard Bank in respect of the placement with that entity. It is by no means evident that invoices 001059 and 001062 were ever sent to ICICI Bank, or if they were that they were sent before the end of October 2007.[56]During October 2007 a remittance advice dated 16 October 2007 was received by the Company from ICICI Bank showing payment of £18,212.50 and £20,562.00, in respect of invoices numbered 21509 and 21062, to bank account number 91388665. Apparently the payments had been made on 17 October 2007. The remittance advice is said by Mr Endacott in his written evidence to have been received by the Company on 26 October 2008; and he says that an enquiry was then made of ICICI Bank, following receipt of the remittance advice, and ICICI Bank faxed copies of the invoices they had been sent.[57]The invoices which were faxed by ICICI Bank and therefore which certainly had been sent to ICICI Bank were in the name of “ID Solutions Ltd”, with the Company’s address and VAT registration number but with Global’s bank details and the legend “please ensure all remittances quote reference ID Solutions”. The invoices were numbered 21059 and 21062 and dated 24 September 2007.[58]It is common ground that during October 2008 a payment of £8,000 was made to Mr Dodshon by Global, this representing (so far as Mr Williams was concerned) a 25% commission on a fee received by Global from ICICI Bank for the two placements. According to the Global bank statements Mr Dodshon’s payment cleared on 24 October 2007.[59]On 24 October 2007 Mr Dodshon had a meeting with Mr Endacott. At this meeting, says Mr Dodshon, Mr Endacott told him that there had been an attempted fraud by Mr Williams in which the latter had forged Mr Endacott’s signature, that Mr Williams had massive debts to the Company and that Mr Williams had misused the Company’s credit card. Mr Dodshon said that he then appreciated that since September 2007 he had had been dealing with clients on behalf of Global believing that there had been an amicable settlement, and that Mr Williams had deceived him and had been trying to convert work incepted by Mr Dodshon on behalf of the Company.[60]It is clear that at the meeting on 24 October 2007 Mr Endacott caused Mr Dodshon to decide to bring his services and loyalties to the Company acting by Mr Endacott. Given that Mr Dodshon had just received his very first payment for his recruitment work, the £8,000, from Global for the placements with ICICI Bank, it is likely that Mr Endacott was at the time told by Mr Dodshon that the ICICI Bank placements had been made and paid for. According to Mr Endacott at the meeting he told Mr Dodshon that the following day he was going to the police station; Mr Dodshon was concerned about how Mr Williams’ activities might affect his, Mr Dodshon’s, position; and following the meeting Mr Dodshon asked to accompany Mr Endacott to the police station.[61]Mr Dodshon, it transpires, came to be paid a further commission by the Company in addition to the 25% already paid on the ICICI Bank invoices: he was now to have a 50% commission. This was paid in respect of the HBOS placement referred to later. He is to be paid a commission equal to 50% of the Standard Bank fee, if that is collected. That is not what Mr Williams had agreed with him. I think Mr Williams is right in his submission that at the meeting with Mr Endacott on 24 November 2007 Mr Dodshon was offered a greater share of the fees earned by the Company from successful placements than the 25% which he had been promised by Mr Williams. Also I think that were the Company correct correct concerning the “eat what you kill” agreement referred to later, Mr Endacott could not properly have agreed to a charge which would impact entirely on the earnings of Mr Williams from what he had “killed”.[62]In the early hours of 25 October 2007 Mr Dodshon paid a visit to the Bishop Stortford office, the office at 22a Hockrill Street, and emailed to himself data stored on his computer at the office relating to his contacts with clients and candidates. Later that day he went with Mr Endacott to Bishopsgate police station; and in due course Mr Endacott made a report to the Police and gave a statement.[63]At the end of October 2007 the Company’s current account was approximately £146,000 in credit, and its business reserve was approximately £65,000 in credit. This was after a drawing of £15,000 made by Mr Endacott, and before the payment of £50,000 referred to earlier. No doubt there were tax liabilities to be dealt with. What now remains after tax and the Company’s expenditure on these proceedings, but with the addition of the HBOS fee, was not explored at the trial.[64]On 14 November 2007 on a without notice application Mr Justice Briggs granted the Company a freezing injunction against Mr Williams and Global. The order made required the provision of information, including as to the receipt of any payments from a large number of specified institutions for labour recruitment services. The injunction was continued by agreement on 21 November 2004.[65]Two days later the Company applied for, and on 27 November 2007 was granted, relief restricting the recruitment activities of Mr Williams and Global. Mr Williams was and is now prohibited from contacting on behalf of or in the name of the Company anyone seeking labour recruitment services, whether as candidate or client; and so long as he remained a director of Company he was not to contact anyone at all in connection with the supply of labour recruitment services in the financial sector. Both Mr Williams and Global have been prohibited from(a) contacting a long list of specified candidates and, in connection with those candidates, a long list of institutions, and(b) contacting a list of institutions (and individuals working for the institutions) in connection with specified job openings.[66]The form of relief granted on 27 November 2007 was calculated to encourage Mr Williams to resign as a director of the Company. In contrast with Mr Endacott, he could not work for the Company in recruitment, and while he remained a director he could not work for himself in the field in which he had his connections, namely the financial services sector. His resignation came on 7 February 2008.[67]On 8 February 2008 Mr Williams sent to Mr Cullen, Ms Balcombe and Mr Hunt a succession of emails, the first captioned “Concerned about Philip Endacott’s alcoholism?” In this he threatened to give wide publicity, including to clients, to a scurrilous article concerning Mr Endacott, unless an acceptable offer of settlement was made to him within a very short time. Mr Williams’ behaviour in relation to this threat gave rise to proceedings against him in which summary judgment was given was given in favour of Mr Endacott.[68]The application for the order made on 27 November 2007 had been supported by a witness statement made by Mr Dodshon. Mr Dodshon exhibited a list of candidates and clients: this list, he said, was his work in progress, being the candidates and clients “with whom I initiated contact, nurtured the relationship and have continued to work closely”. He valued this work as producing, if successful, around £435,000 for the Company. This list, I have no doubt, formed the basis of the identified persons in the order made on 27 November 2007. What was stated in Mr Dodshon’s oral evidence, but not in his written evidence, was that he would expect a success rate of about 20% in relation to the work in progress. In the event there was no success, so I was told by Mr Endacott and Mr Dodshon: none of Mr Dodshon’s prospective placements came to fruition.[69]Further, Mr Endacott told me that no other work in progress from 2007, other than that completed during 2007, came to a successful conclusion. Indeed, in his evidence he was very vague as to whether or not there had been any other work in progress. Insofar as Mr Endacott and Mr Proffitt had worked at promoting recruitment opportunities for the Company after about June 2007, Mr Endacott’s evidence is that they had no success whatsoever.[70]So far as I can see the Company had ceased to carry on business by the end of 2007, except for the purpose of pursuing this action. Mr Endacott’s oral evidence was that the Company had been “parked”, and that it is to be liquidated “when this is resolved” as it cannot continue. For his part Mr Cullen said that the Company had not been trading since early 2008. On the parking of the Company Mr Endacott started working for a new company called “Human Capital Partnership”, that being as I understood it a recruitment agency.[71]In the light of the evidence of Mr Dodshon and Mr Endacott referred to above, I think there can be no reason for continuing any longer the remaining restriction on the activities of Mr Williams and Global contained in the 27 November 2007 Order.[72]On about 9 May 2008 Mr Endacott signed the Company’s balance sheet at 31 March 2007 to confirm that the financial statements were approved and authorised for issue. The balance sheet showed shareholders’ funds of £218,309, of which the bulk (£164,293) comprised debtors. These debtors were said to include £101,050 due from Mr Williams and £27,021 due from Mr Endacott. The directors’ emoluments were stated as being £68,750. A surprising aspect of this is that Ms Balcombe had given Mr Williams a P-14 form for the year to 5 April 2007 which showed his gross pay from the Company to have been £68,750. I have no doubt that she will have given a similar form to Mr Endacott.[73]Mr Endacott was asked about the content of the accounts he had signed. His position was that he could throw no light on the items stated in the accounts, as they had been prepared by the Company’s accountants, and that anyway the accounts which would matter would be the accounts prepared following the conclusion of these proceedings.[74]The Company’s Counsel, Mr Robert Strang, submitted that the £68,750 figure reported in the accounts probably represented emoluments of Mr Endacott, that the P-14 provided to Mr Williams was an unauthorised mistake on the part of Ms Balcombe, and that the difference in the directors’ loans stated in the accounts was because Mr Williams’ drawings from the Company were all treated as loans, while in the case of Mr Endacott it was only the difference between the drawings and the £68,750 which was treated as a loan.[75]Accepting as I do that the reference to £68,750 of emoluments in the accounts was to £68,750 of the emoluments paid during the year to Mr Endacott, nothing being shown in the accounts as having been paid to Mr Williams, I make the following two findings:(1) First, there can have been no proper basis for the Company to have concluded that Mr Williams should be treated in 2006-07 as having had no remuneration at all from the Company, while Mr Endacott did. Such a conclusion casts light on the Company’s claim against Mr Williams for the excess of his drawings over his agreed remuneration by reference to a supposed “eat what you kill” agreement. This I discuss later.(2) Second, I reject Mr Endacott’s explanation for the content of the accounts. As the Company’s sole director he was responsible for the accounts. He must have been concerned with what was set out in the accounts concerning the position of Mr Williams, as that was bound up with the claims being made in these proceedings. The statement in the accounts concerning the emoluments and the directors’ loans took the form it did, not because it was accurate, but because it avoided giving any comfort to Mr Williams in these proceedings.

The evidence of the main witnesses

[76][Mr Williams] It will be apparent from what I say later that I am unable to accept the evidence of Mr Williams on many of the issues which require decision. He gave me the clear impression of being devious in his conduct of the case and in his evidence and willing to say anything if he thought it might help him. When confronted with a lie which he had told or a deceit which he had practised he would pile one false explanation on another. Two examples will suffice.[77]When Mr Dodshon left the 22a Hockrill Street office on the morning of 25 October 2007 he left behind him various documents. His written evidence recorded that he had left, among other materials, a diary and numerous notes. He said that these notes included electronic notes “concerning my dealings with ICICI, Standard Bank and HBOS on behalf of [the Company]”. At the start of the hearing, on Monday 8 December 2008, when the Company sought to renew an application made to the Master the previous Friday 5 December 2008 for an order against Mr Williams for disclosure of the diary and these notes, Mr Williams asserted that there was nothing he could produce as the materials had been stolen by Mr Dodshon and he did not have any. However, when cross-examining Mr Dodshon Mr Williams produced the diary and asked Mr Dodshon about the latter’s attendance at a job centre at a time after March 2006 when he was working with the Claimant.[78]Mr Williams was cross-examined about his claim not to have the diary. The following were the explanations he gave:(1) He had been searching in a shed the previous weekend and it was only then that he had found the diary. That, however, only explains Mr Williams’ position before the Master, not the statements Mr Williams made on the Monday at the start of the trial.(2) When that point was put to Mr Williams he said he had not wanted to produce the diary as it might then have been tampered with and changed. But of course if that had been his concern he could have copied the document before handing it over for inspection.(3) When that point was put to Mr Williams he said he did not want to disclose the diary as he had wanted to look Mr Dodshon in the eye when he confronted him with it.(4) When it was suggested to him that that was not a good reason for telling a falsehood he said he was not sure that the diary was the one sought by the Claimant – this, despite the fact that the diary had Mr Dodshon’s name and address in it, and Mr Dodshon had only ever referred to one diary.[79]The second example concerns the affair of 28 August 2008 with Clydesdale Bank. By that time, as I have no doubt, Mr Williams was frustrated with Mr Endacott, believing that he was entitled to be paid a further £3,000 by way of salary for August 2008 and also that he should have expenses reimbursed to him. As to these, there still remained unpaid the £7,350 plus VAT which had formed the subject of the Global invoice dating back to 2006; and by August 2008 there had been further expenditure of a similar kind as well as in connection with the 22a Hockrill Street office. By that time, too, Mr Endacott had caused the credit card facility to be withdrawn.[80]Against this background Mr Williams sent to the bank the faxes of the two documents on which he fabricated Mr Endacott’s signature, as described earlier in this judgment. His various explanations for what he did were as follows:(1) To Mr Cullen, when he asked Mr Williams about the matter in early September 2007, Mr Williams said that he had sought to teach Mr Endacott a lesson. This explanation is, of course, consistent with Mr Williams having intended the instruction to the Bank to be fully effective and complied with.(2) In an email sent by Mr Williams on 4 September 2007, in response to an email from Mr Endacott and Mr Cullen proposing Mr Williams’ removal from the Company, Mr Williams explained that there was no fraud in, among other matters, removing a stop on a cheque which had been improperly withheld, or “in payment of monies to cover costs (invoice to follow) from one company into another where you are a fellow director…”. There was in this no hint that the instructed payments were not intended to be made. On the contrary, the point was being made that the cheque should never have been stopped and that there was nothing wrong in making a transfer to Global of expenses in Global, where Mr Endacott was a director.(3) In Further Information provided in response to the Company’s request Mr Williams says that “the instruction to the bank was placed on an incorrect form and was indeed cancelled by the Defendant”. He says that before submitting the documents he had ascertained that the form was wrong, and also that the stop on cheque 0055 for £3,000 was permanent and could not be lifted, so that the instruction could not be acted upon and the request to lift the stop would be ineffective. However, bearing in mind that the telephone number placed on the CHAPS form was that of Mr Williams, it is not apparent why sending deliberately ineffective instructions to the Bank was calculated to teach Mr Endacott a lesson or to make him sit up and take notice (using Mr Endacott’s expression in his Further Information).(4) In cross-examination Mr Williams said that he wanted the £3,000 to go through so that he could have his August salary. When it was pointed out that he was therefore prepared to use Mr Endacott’s forged signature to achieve this end, he denied that that was the case. This he explained by stating that in a phone call to the bank before submitting the documents he had been told that if the bank were to remove the stop, the bank would need a faxed instruction but had not explained how many signatures were needed on the fax. The logic of this explanation, although unstated, was that the forged signature was unnecessary so far as concerned the removal of the stop. But of course the simple fact was that he had used the forged signature on the faxed instruction which, on this explanation, he chose to give.(5) The phone conversation between Mr Williams and the Bank on 29 August was described by Mr Williams in his oral evidence as having been by way of extra security, beyond using the wrong form, of ensuring that the payment of the £21,000 was not made by the Bank. But on his own showing, by the time he made the call he had already been told by the Bank that the payment could not be made on the basis of the materials so far provided to the Bank, so that this extra security was pointless. The more likely reason for his call is that Mr Williams wished to avoid attention being given to what he had done.[81]As it seems to me the obvious explanation, the only one which I think credible, is that Mr Williams was seeking payment of what he thought he was entitled to for his August salary, namely £3,000, and was aware that Mr Endacott (supported by Mr Cullen) was refusing to allow any payment; and he thought that the Company ought to be paying a further £18,500 plus VAT for expenses to Global. He hoped by the instruction to the Bank to gain the payment of those sums. When the plan broke down in the face of the Bank’s refusal to comply and with its communication to Mr Endacott and Mr Cullen, Mr Williams sought to defend himself from having attempted an unauthorised use of a facsimile of Mr Endacott’s signature. Mr Williams’ denial of this I find incredible and simply do not believe.[82][Mr Endacott] As will be apparent from what I have said already, I have misgivings about the reliability of aspects of Mr Endacott’s evidence. I have already set out my findings concerning his involvement in the statements made in the Company’s 2006-07 financial statements. I reject his evidence on a couple of material issues, most importantly in relation to the “eat what you kill” agreement referred to later. He has been repeatedly made the subject of disgraceful insinuations and insults by Mr Williams, those being given a widespread circulation by Mr Williams. Hardly surprisingly he can no longer be objective about the events or the issues. Further, I am sure that by the middle of 2007 he had really had quite enough of Mr Williams and from then on wanted to disengage from the joint venture on terms which gave as little as possible to Mr Williams. This has manifested itself in his giving evidence which is inaccurate, being slanted in favour of the Company.[83]I believe also that Mr Endacott’s attitude to Mr Williams has coloured the Company’s claims in these proceedings and the evidence lead by the Company. I give one example. Ms Balcombe gave evidence as to drawings by each of Mr Williams and Mr Endacott. Her written evidence, which in large measure sets out matters extracted from the Company’s records or told to her by Mr Endacott, shows Mr Williams as having received £3,000 on 28 July 2007 on cheque number 055. That cheque is the one which was never paid, as explained above. Ms Balcombe conveys in her written evidence that this figure (among others in the relevant list) was taken from the Company’s bank statement. But as to that £3,000 that cannot be correct, for the reason that the relevant cheque never features in the statement, for obvious reasons. The same error as to cheque 055 was made on the last of Mr Endacott’s spreadsheets, that of 24 October 2008.

The claim for £19,500

[84]I am satisfied that the £19,500 payment made following the meeting on 19 December 2006 was made by the Company as a loan to Mr Williams, the cheque at his request being made payable to Global. It was a loan which Mr Williams was to pay to the Company. No doubt, however, he expected, or at the least hoped, that he would be able to do this by set off against amounts becoming due to him from the Company; but unless and until the whole of it had been set off in this way he remained liable to repay the outstanding balance. It was not the case that if for any reason his salary was insufficient, he was not liable to repay. In reaching my conclusion on this point I rely in particular on the following:(1) The evidence of each of Mr Cullen and Mr Hiard, both of whom were present at the meeting on 19 December 2006, is that in the face of Mr Williams’ urgent pleas to have money to meet a debt owed by him to the Revenue Mr Cullen and Mr Endacott agreed that the Company should give Mr Williams a loan of £19,500. They both go on to say that it was agreed that Mr Williams should repay the loan as soon as possible. I accept that it was agreed that Mr Williams was to repay the loan.(2) In an email sent on 16 August 2007 sent from Mr Williams to Mr Cullen, Mr Williams said that he did not owe the Company anything “(apart from a directors loan agreed in December 2006)”. This can only have been a reference to the £19,500 payment agreed upon on 19 December 2006. Mr Williams’ attempted explanation of this email is moonshine. He said that the parentheses in his email were used to show that he did not accept that there was a loan. In fact the language of the email is perfectly clear: Mr Williams was saying that all he owed was the director’s loan, meaning whatever was due in respect of the £19,500.[85]However this is not the end of the claim. I do not think Mr Williams’ evidence concerning the “advance on salary” to be wholly devoid of substance. It is likely that the expectation of those who discussed the loan on 19 December 2006 was that the repayment of the loan would be possible for Mr Williams as and when his salary was sufficient. To some extent this is borne out by the fact that after the start of 2007 Mr Williams’ monthly payments of what he called “salary” reduced compared both to what he had previously been paid and compared to Mr Endacott’s monthly payments. By way of illustration in January and February Mr Williams received £3,000 per month while Mr Endacott received £5,000. Also, as I explain in connection with the excessive drawings claim, I believe that at the time the parties (that is, Mr Williams, Mr Endacott and Mr Cullen) were expecting at each year end to have a reconciliation of drawings and a payment of bonus, or further salary, to cover so much of the drawings of each of Mr Williams and Mr Endacott in excess of £75,000 (gross before PAYE and employee’s NIC) as they might mutually agree was appropriate for the year’s remuneration.[86]Under the circumstances it is not necessary to consider the Company’s alternative claim that the £19,500 was unlawful under section 330 of the Companies Act 1985 as a prohibited loan by a company to a director and accordingly recoverable from the director. What is material to decide is what part if any of the £19,500 has been satisfied by Mr Williams and what part remains unpaid.

The ICICI Bank payment

[87]In his written evidence Mr Williams had said that following the meeting on 26 July 2007 he had been clear in his mind that there would be an end to the Company, and that he realised he “had no choice but to carry out work in the name of Global on behalf of ICICI Bank UK plc invoicing them and receiving payment from them in accordance with the terms of business Global had with them going back to March 2005”. He says that when payment from ICICI Bank became due, he did not have any “suitable Global invoices set up at that time” and therefore made use of the Company’s form of invoice. He also said that ICICI Bank were happy with his invoicing them in this manner, but without explaining whether ICICI Bank intended to pay Global or the Company when the payment was made.[88]In setting out the background to the claim earlier in this Judgment I have explained how in September and October Mr Williams sought to carry on business in Global. I do not accept that this had started before the end of August 2007. Despite the evident disintegration then of the joint venture with Mr Endacott and Mr Cullen, I do not think that that disintegration justifies Mr Williams’ stance in these proceedings on the ICICI Bank payment or, indeed, on the HBOS and Standard Bank placements. In summary, it was never agreed with Mr Endacott or Mr Cullen that Global should be able to take over and keep for itself the benefit of contracts and introductions already made with or by Mr Williams on behalf of Global before September. Indeed, even during September and October Mr Williams remained an officer of the Company and entitled to his salary, so that the Company might very well have had claims in respect of new contracts made then; but in fact none of the relevant contracts were.[89]As regards the ICICI Bank payment specifically, the story started well before September 2007. After the Company’s commencement of business it took on ICICI Bank as a client, successfully making a placement with ICICI Bank for which the Company was paid. After that, the two placements in respect of which the ICICI Bank payment was made were the result of search requests from ICICI Bank made well before September 2007 (when Mr Dodshon says he was first told by Mr Williams that they were now carrying on business for Global), and indeed before August 2007).[90]In other words I reject the case that the retainer at the material time was of Global rather than the Company, so far as ICICI Bank was concerned. For this some further agreement involving the Company would have had to be made between Global and ICICI Bank for Global to take from the Company the right to payment for successful introductions of candidates to ICICI Bank made by the Company and for which the Company had been engaged before September 2007. No such agreement has been alleged.[91]Again, I reject any suggestion by Mr Williams that the Company had agreed with Global that the latter could stand in the Company’s shoes in effecting the placement of candidates with ICICI Bank and receiving the appropriate fees. At the most there were proposals of settlement made to Mr Williams in about September and October 2007 which, if accepted, could have led to such an agreement.[92]Mr Williams’ evidence concerning of the form of the invoices I reject as an invention. As it seems to me, the form of the invoices was designed by Mr Williams to mislead ICICI Bank into thinking that it was being charged by and paying its recruitment agency, the Company for work done by the Company. This is apparent from the form of remittance advice sent by ICICI Bank, not to Global, but to the Company.[93]I have set out above Mr Williams’ explanation in his written evidence for the form of the invoices used by him. As appears from the narrative which I have previously given, he had generated Global invoices in a perfectly conventional form in August; and was able to produce similar invoices for ICICI Bank dated 24 September 2007, whether generated then or later during 2007. The two “ID Solutions” invoices sent to ICICI Bank must have been intended by him to convey to ICICI Bank that in respect of the successful placements they would be duly paying an amount owed to the Company when they made payment in accordance with the invoices.[94]Mr Williams in his oral evidence gave a further explanation for the invoices he sent to ICICI Bank. It was obvious that the administrative error explanation was not credible and some explanation was needed for the forms of invoice in Global’s name (invoices 001059 and 001062). In effect Mr Williams said that one or other of the two forms was used and then replaced with the second form, ICICI Bank having requested the use of the forms. He was not clear as to the precise sequence in which the forms were used or the request made, his evidence on this point changing. But, importantly, he said that ICICI Bank was aware that the payment was due to, and being made to, Global as he had had discussion with ICICI Bank personnel about the point.[95]I do not believe Mr Williams’ evidence on this. There is no trace of this explanation in Mr Williams’ written evidence; and the explanation does not credibly explain the form which the “IDS Solutions” invoices in fact took, those invoices unquestionably having been ones which were provided to ICICI Bank and being calculated to confuse and to lead the Bank to think it had paid the same person as the person who was given the remittance advice.[96]My conclusion on the ICICI Bank payment is that Mr Williams, without any authority or proper justification, caused the money to be diverted from the Company to Global. What he did was a clear misapplication of property of the Company and a breach of his fiduciary duty as a director of the Company.[97]As the sole director of Global at the time, Mr Williams knew all the material facts, and in particular knew how it was that Global was paid and received the ICICI Bank payment. His knowledge is Global’s knowledge; and what he knew and by him what Global made it unconscionable for Global to retain the benefit of the payment. In my judgement Global received the amount paid as a constructive trustee for the Company and is liable to pay to the Company the amount received.[98]It follows that Mr Williams and Global are each liable to account to the Company for the amount of the ICICI Bank payment, credit nevertheless being given for the £8,000 paid to Mr Dodshon.

The HBOS plc placement

[99]On 1 November 2007 a candidate who had been successfully placed with BOS Treasury Services (a division of HBOS) started work. A fee was owed by the client, HBOS, for the placement. As mentioned earlier, Global submitted to BOS Treasury Services an invoice, number 001060 dated 1 November 2007, this being for £32,125 plus VAT. From the records produced by Mr Williams it appears that the candidate had been interviewed by HBOS in August 2007; that candidate had been in contact with the Company as early as November 2006 with a view to obtaining a placement; and that HBOS had been identified as a possible target in June 2007.[100]The placement fee was paid by HBOS to the Company at some time after 27 November 2007. The question, raised by the Company, is whether as between Global and the Company the fee belongs to the Company.[101]Mr Williams has produced what appears to be an email exchange from 2005 attaching a draft retainer agreement between “HBOS Treasury Services” and Global. I have not been shown any other written retainer with HBOS (or the BOS Treasury Services division of HBOS) which might have been applicable to the placement of the candidate.[102]Mr Dodshon, however, says there was a written retainer between BOS Treasury Services and the Company. I think he is likely to be correct on this point, whether or not his memory is to be depended upon. When the retainer was agreed with HBOS in the summer of 2007, that would have been agreed on behalf of the Company; and it is likely that an appropriate written retainer with the Company was made then, if not sooner. But, if it was not, it is likely that there was then an oral retainer made with the Company. Either way I cannot see how at that time Mr Williams could properly have made the retainer on behalf of Global rather than the Company.[103]Accordingly, as I find, the placement fee for the placement with BOS Treasury Services was due from HBOS to the Company, and there is no basis on which Global can claim to be entitled to the fee as against the Company.

The Standard Bank placement

[104]The final placement fee in relation to which I must make a decision is one claimed to be due from Standard Bank. As Standard Bank is not a party to these proceedings, what I decide is based on the assumption (which may be mistaken) that Standard Bank does in fact owe a fee, either to the Company or to Global, arising from the placement. The question is, if Standard Bank does owe a fee to Global, is the Company nevertheless entitled to claim as against Global that the fee should be handed over to the Company?[105]In this case the relevant placement was made in about October 2007, with a start date of January 2008; but the introduction had been made to Standard Bank before September 2007.[106]From early 2006 Mr Williams had had contact with Standard Bank. According to Mr Williams’ notes, the position then was that Standard Bank “already has search relationships”, but it is “OK to [receive] cvs on a first come first served basis”. From time to time thereafter possible candidates were introduced to Standard Bank. In the spring or early summer of 2007 a candidate was identified and in due course introduced to Standard Bank. In early August 2007 an interview was arranged for 13 August 2007 with Standard Bank. There appear to have been desultory exchanges involving the candidate and Standard Bank until ultimately those two agreed that the candidate would come to work for Standard Bank.[107]Mr Dodshon says that on about 22 April 2007 Standard Bank faxed to the 22a Hockrill Street office the terms on which Standard Bank would accept and pay for recruitment services from the Company, and that in September 2007 he received an email from Standard Bank attaching new terms. Mr Dodshon does not say who was to be party to the new terms, whether the Company or Global. If Mr Dodshon’s evidence is correct about this, it seems to me more likely that any written terms passing in September 2007 would have involved Global, not the Company, as Mr Dodshon by then thought he and Mr Williams were working for Global and not the Company. But as Global could not without the agreement of the Company discharge Standard Bank from an engagement with the Company, if the fresh terms were with Global they will not have displaced the terms with the Company so far as any work had been done by the Company for which the Company was entitled, or to become entitled, to payment from Standard Bank.[108]If the documents spoken of by Mr Dodshon ever existed, Mr Williams and Global have failed to disclose any copies: the only retainer agreements disclosed are the unsigned documents dating, it appears, from about March 2005 between Global on the one side and, respectively, ICICI Bank and HBOS on the other.[109]Mr Williams did not specifically challenge Mr Dodshon on his evidence concerning the terms said by Mr Dodshon to have been received from Standard Bank. But his cross-examination of Mr Dodshon did in general terms challenge the apparent detail recalled by Mr Dodshon in his written evidence compared with his very surprising lapses of memory on details which he might have been expected to remember without difficulty, such as the question whether he was registered for VAT and, when he became “self-employed”, he did so using a company and if so the name of the company.[110]My conclusion is that there may very well have been a written retainer made by Standard Bank in September 2007, and if so the probability is that it was with Global. But I conclude also that there must have been a retainer, probably in writing, before September 2007 which had been made between Standard Bank and the Company; if it was not made in April 2007, it was in any case made before September 2007 and before the introduction of the relevant candidate to Standard Bank.[111]Accordingly, in my judgment any fee for the placement with Standard Bank must have become due under the pre-September 2007 agreement with the Company rather than the September agreement with Global. This is because the placement was effected on an introduction which must have been made before September 2007 by Mr Williams, assisted by Mr Dodshon, and while these two were working for the Company in effecting placements.

The credit card expenditure

[112]In my judgment Mr Williams is liable to give an account to the Company in respect of the £5,796.50 of credit drawings and expenditure. From the credit card statements it is not obvious that the relevant expenditure was for anything on the Company’s behalf; on the contrary a fair proportion of the expenditure seems likely to have been purely personal.[113]I do not think that immediate judgment should be given for the sum of £5,796.50, as opposed to the taking of an account. At the trial it was not appropriate to explore each and every item of expenditure.[114]Rather attention turned to a different point. The credit card statements produced in these proceedings which record Mr Endacott’s expenditure do not demonstrate that all his expenditure was on the Company’s behalf rather than being simply personal. The difference between the position with Mr Endacott on the one hand and Mr Williams, on the other, is that the former provided vouchers for his expenditure, the latter did not. To Ms Balcombe in examining the expenditure what seems to have mattered was whether or not the Company had the relevant vouchers. Her evidence was that Mr Williams promised vouchers but did not provide them to her. But she accepted in evidence that he may have provided the vouchers to her assistant in a period when she was away.[115]I have asked myself whether the small amount of money at stake makes it appropriate to direct the taking of an account, or whether there is some better shortcut. On reflection, however, I have decided that the taking of the account, if the parties wish to pursue the matter, could form part of the account which will be necessary to resolve finally the excessive drawings claim. It is to this I now turn.

The excessive drawings claim

[116]The excessive drawings claim rests on the fundamental premise, contended for by the Company, that by an agreement between Mr Williams and Mr Endacott and the Company each of Mr Williams and Mr Endacott was to be remunerated by the Company by reference to the placement fees earned by the Company from his placements. This agreement has been referred to in these proceedings as being an “eat what you kill” agreement. The Company’s case is that Mr Williams was much less successful than Mr Endacott in placing candidates, earning less in fees for the Company, but drew from the Company for his remuneration far beyond what he was entitled to (however that might compare with what Mr Endacott drew). Mr Williams denies this, saying that there was no such agreement and that he and Mr Endacott were entitled to equal remuneration. He makes the point that he does not know what remuneration was drawn by Mr Endacott, but that undoubtedly he drew at least as much, if not more, than Mr Williams. The last of Mr Endacott’s spreadsheets, that dated 24 October 2007, shows Mr Endacott’s drawings at about the same as those of Mr Williams.[117]The pleading of the “eat what you kill” agreement in the Particulars of Claim (these being dated 29 November 2007 and bearing a truth statement signed by Mr Endacott) describes this as follows:
“At all material times, there has been an unwritten contract of services between the Claimant and [Mr Williams] based on an ‘eat what you kill’ policy, whereby each of [Mr Williams] and Mr Endacott would be entitled to income from the Claimant based upon the commissions each earned for the Claimant after their individual costs and expenses were taken into account. The proportion of earnings contributed to which they were entitled was calculated as 100% of the income generated up to £75,000 per annum after costs and expenses and 80% thereafter”
[118]This gives no clue as to the way in which the “eat what you kill” agreement came to be made. Indeed, taken literally the agreement was only between the Company and Mr Williams. And the pleaded agreement must have been made in about April 2006.[119]Mr Endacott in his November 2006 affidavit asserted that “as to how Clint, [Mr Cullen] and I were to be remunerated, Clint and I agreed to work on an ‘eat what you kill basis’ and [Mr Cullen] was entitled to take a 20% cut of the net profits … that we individually generated.” He went on to say that the 20% cut only applied after the first £75,000 of each individual’s net profits. His November 2007 witness statement elaborated on this by stating that the agreement involved Mr Cullen as a party entitled to “20% of all revenue generated by [Mr Williams and Mr Endacott] over and above costs and VAT” adding that “the net result to [Mr Cullen] was the same” as if each of Mr Williams and Mr Endacott had a salary of £75,000 gross each.[120]Mr Endacott’s evidence was silent as to when or how this agreement was made; but, the inference appears to be that it was made in about April 2006. His evidence was silent as to the way in which Mr Cullen’s entitlement to 20% was going to paid, whether as dividend or on some other basis. And his evidence, like the Particulars of Claim, was silent as to the way in which the Company’s general expenses (as opposed to separate expenses each individually might incur in pursuing business opportunities) were to be taken into account in relation to the “eat what you kill” agreement.[121]Mr Endacott’s evidence, as developed orally, was that the operation of the “eat what you kill” agreement involved, and was evidenced by, the work placement forms. These, he said, were completed by Mr Williams (or, on occasion by Mr Endacott) and were sent to Lesly Balcombe for processing, when a candidate was successfully placed. These forms had various details for completion, including an entry for the “consultant”. It is said by Mr Endacott that on the form against this heading would be entered the initials of whichever of Mr Endacott or Mr Cullen was “responsible for the fees generated” by the placement. This style of form was in fact used from the outset by the Company, including in respect of the very first placement made by the Company in May 2006. The forms were the same as had been used in Allenby Hunt.[122]There are serious difficulties with Mr Endacott’s evidence about the “eat what you kill” agreement, and with the Company’s version of events.(1) From Mr Cullen’s perspective there would be a difference if his entitlement to 20% was by reference to individual thresholds of £75,000 rather than an aggregate threshold of £150,000 (as it would be, if the two protagonists were paid salaries of £75,000 each). This is obvious. So, for example, in the case where one individual earned nothing, Mr Cullen’s 20% would apply in relation to the earnings of the other, giving him in effect a £75,000 threshold.(2) On the strict “eat what you kill” version of the agreement contended for by the Company, the only “surplus” to which the Company could be entitled and out of which the Company could pay dividends would be the 20% share for Mr Cullen. But if the 20% share were then distributed as dividend, Mr Cullen would only receive one fifth of the distribution. There is no other basis than dividend on which Mr Cullen could be entitled to receive payments from the Company. Hardly surprisingly Mr Cullen’s oral evidence was that he expected to receive his entitlement in the form of dividend.(3) In his oral evidence Mr Endacott accepted that the description of the arrangements given in the Particulars of Claim and written evidence took no account of the necessary expenses of the Company which could not be attributed purely to the expenses of one or other protagonist. These would include, by way of example, such matters as any expenditure on the services of Ms Balcombe. It turned out that the Company had indeed paid sums to JCL companies in respect of such expenses. He therefore suggested that these expenses were to be divided 50/50 between himself and Mr Williams. But again, in the case where one of the protagonists had generated no fees at all, there would be a difficulty. In that situation Mr Cullen’s 20% would fall to be paid, so it would seem, without regard to the fact that the Company had in fact borne the whole of the expenditure. But obviously the Company would not have sufficient income to make all the necessary payments.(4) Mr Endacott accepted in cross-examination that he and Mr Williams started the Company with the expectation that the Company would be successful and become valuable. Mr Williams put it that this would involve “building up a pot”. At one stage Mr Endacott accepted this proposition. Of course there could be no pot built up on the Company’s contention in relation to the “eat what you kill” agreement. Later, after reflection, Mr Endacott withdrew his answer on this and instead suggested that the Company might be valuable, as he had agreed, in that a purchaser might wish to buy into its success. However the “eat what you kill” agreement would mean that there was nothing for a purchaser to buy into, as the whole of the revenue net of expenses was spoken for between Messrs Williams, Endacott and Cullen.[123]During the course of the trial it became apparent that the “eat what you kill” agreement could not have been made before, at the soonest, September 2006. This was because Mr Cullen’s evidence was that there was no such agreement before the meeting on 18 September 2006 to which I have referred earlier in this judgment. This fact alone supports Mr Williams’ evidence that the old Allenby Hunt style of candidate placement forms was used simply for convenience; so far as applied in the case of the Company, the “consultant” entry was merely for administrative purposes, to identify the individual to whom any enquiries about the placement might appropriately be directed. Specifically, in the period between April and September 2006 the form cannot have been used for the purpose of any non-existent “eat what you kill” agreement.[124]At the time when the Company was being formed a draft shareholders’ agreement had been prepared. This agreement was never concluded. But the draft contemplated exactly what one might have expected in the absence of some express “eat what you kill” agreement. That is to say, the Company’s revenue after meeting normal operating liabilities and any investment expenditure was to be distributed in paying such dividends as were resolved upon by the directors.[125]Mr Cullen gave evidence concerning what had been agreed, so far as he was aware, in relation to any “eat what you kill” basis of remuneration. What he said was that there was discussion between himself, Mr Williams and Mr Cullen at a meeting on 18 September 2006; and he produced in evidence what he said was a memorandum made by him following the meeting and describing what was discussed and agreed at the meeting.[126]According to the memorandum there was at the meeting discussion about outgoings which had been made, as shown in the Company’s records. As to this the memorandum states that “all items not designated as general running expenses were noted down as Sal and would be set against salary decided on for the year.” The memorandum continues that “For PAYE purposes [Mr Endacott] was suggesting £75,000 – this was to be finalised shortly”. There was then reference by Mr Cullen to “the question of the percentage splits as agreed at the outset”. But in the context this is a reference to splitting net profits after deducting what had been agreed as fee splits for Allenby Hunt on run-over work. The memorandum continues that Mr Cullen conceded that apart from the Allenby Hunt splits “… running costs should be deducted before the 40, 40, 20 profit share for [Messrs Endacott, Williams and Cullen] came into play – not as first thought from gross income”. In other words Mr Cullen accepted that the 40, 40, 20 division would be by reference to the Company’s income net of payments to Allenby Hunt as well as expenses. The conclusion on this aspect was that “It was stressed however that this was to include reasonable day to day running costs and salaries of the Directors and new staff taken on.”[127]To my mind the memorandum is clear: Messrs Williams and Endacott were to have salaries, and the profits of the Company after those salaries and other running expenses (including any payments to Allenby Hunt) were to be shared in the ratio 40, 40, 20. I accept Mr Cullen’s evidence that his 20% was to come to him as dividend; and logically the other shares (like Mr Cullen’s) would be paid or retained in the Company as profits were paid as dividends or retained.[128]Mr Cullen’s oral evidence was that he was not aware of whatever arrangement might have been made between Mr Williams and Mr Endacott for adjusting matters privately between themselves, should one or other be more productive of fees for the Company. But he was clearly aware that no such agreement had been made by 18 September 2006, as his memorandum continued by recording that Messrs Williams and Endacott “were looking to be in a position to redress the balance should one of them contribute substantially more than the other to the bottom line. It was agreed that this should be carried out between the two of them out of their respective profit share after costs”.[129]As I find it, Mr Cullen’s evidence is inconsistent with the Company having ever made the putative “eat what you kill” agreement with Messrs Williams and Endacott.[130]The first articulation of the Company’s present contention as to the “eat what you kill” agreement appears to have been made in about August 2007, when relations between Mr Williams and Mr Endacott had turned sour and when Mr Endacott elevated into a binding “eat what you kill” agreement the expectation that he and Mr Williams might by agreement address any balance between them if one were to contribute substantially more than the other.[131]I have referred earlier to Mr Endacott’s email of 10 August 2007; and in an email of 13 August 2007 sent by Mr Cullen to Mr Endacott, Mr Cullen asserted that there was an “eat what you kill principle agreed by you and Pip”. Mr Cullen’s understanding of the agreement must have been gained from something to told to him by Mr Endacott at about the time; and it was at once rejected by Mr Williams in his email of 16 August 2007, where he pointed out that “the talk of separate income streams is frankly ridiculous given my input in virtually all successes the company has enjoyed.”[132]Mr Williams’ point here merits further comment. At the trial he took pains to elicit from Mr Endacott, as he did successfully, that frequently the two of them worked together to cement a relationship with a client or candidate, or to effect a placement of a client, whether this involved both of them together attending meetings with the particular client, or one taking communications for another in relation to the particular client or candidate. In other words, although one may have had the initial contact with the client or candidate and may have been able to say that principally the connection was his, it would not be correct to consider that the successful placement was exclusively attributable to his connection and effort.[133]Under the circumstances I reject the Company’s claim in relation to the “eat what you kill” agreement. My conclusion is that there was no such agreement. Further, I very much doubt that there was ever any private agreement between Messrs Williams and Endacott for adjustment between them of the sharing of the 80% of the Company’s profits to which together they were entitled. The case pleaded by the Company and set out in Mr Endacott’s evidence was not for any such agreement.[134]Where then does this leave matters? As it seems to me the position reached in September 2006, agreed to by all the Company’s members, was that each of Mr Williams and Mr Endacott was entitled to be paid a basic salary (net of expenses) of £75,000 per annum. The £75,000 figure was known to Mrs Balcombe. I don’t believe that it had been passed on to her as a provisional figure only and subject to possible downwards adjustment: rather if there was to be any adjustment made at a year end, it was to be upwards only, as I explain below. In the ordinary way, the Company would be responsible for employer’s NIC on the £75,000 (or whatever greater salary was agreed for the year) while each of Mr Williams and Mr Endacott would be entitled to the £75,000 (or other sum) from which the Company would deduct and account to the authorities for PAYE and employee’s NIC.[135]As conveyed by the first passage in Mr Cullen’s memorandum of September 2006 quoted above, it was intended that at each year end there was to be a discussion and decision by the members (that is, Mr Williams, Mr Endacott and Mr Cullen) as to whether or not the salaries should be supplemented by some bonus, “the salary [being] decided for the year”. The year-end salary decision would be to decide how much more should be paid, over and above the £75,000, having regard to (among other matters) “all items not designated as general running expenses [and] noted down as Sal”. As the Company had operated and continued to be operated, the Company would allow drawings to be taken by the proprietors, and these at the year-end could be adjusted for by being included in additional remuneration for those proprietors. Absent any other agreement, I would expect the year-end bonus to be awarded equally.[136]If this is correct, there are two consequences. First, Mr Williams’ entitlement to salary will have ceased with his resignation in February 2008. Until that time the Company continued to treat him as serving the Company. This point is demonstrated by the terms of the injunction obtained on 27 November 2007.[137]Second, as it seems to me the pursuit of the excessive drawings claim, and indeed the claim for the unpaid balance of the £19,500 loan, requires an account to be taken of Mr Williams’ drawings during the period from April 2006 to 7 February 2008: the maximum to which the Company could be entitled would be excess (if any) of those drawings over his minimum entitlement to his salary (net of PAYE and employee’s NIC on his salary) of £75,000 for a year and some ten months.[138]However I am not sure that the taking of such an account is necessary. This is because the minimum salary does not take account of the possibility that Mr Williams’ remuneration should have included a bonus. Specifically, I think that absent agreement to the contrary Mr Williams was entitled to the same remuneration as Mr Endacott was allowed for the period. And if this is correct the possibility is suggested that in truth there is nothing due from Mr Williams.[139]This possibility is suggested by a consideration of Mr Williams’ drawings when compared with Mr Endacott’s. (1) Mr Williams received nothing from the Company after August 2007, by which time his payments received from the Company’s account totalled £84,650 (payments by cheque together with transfers and cash withdrawals), plus the £19,500 advance of December 2006. Of the £5,796.50 of credit card expenditure complained of by the Company, £1,620 consisted of cash withdrawals. The total of the drawings and loan amounts to £109,946.50. No part of the expenses of some £18,500 claimed by Global had been paid. (i) Mr Endacott had by 3 September 2007 received payments from the account of £112,690.77, of which £98,005 was for remuneration (no PAYE or NIC deduction having been made) and the remaining £14,685.07 was said to be expenses. The final payment making up the £98,005 was made on 3 September 2007. How much Mr Endacott was paid subsequently was not explored at the trial.[140]As I have rejected the Company’s case concerning the “eat what you kill” agreement, I have difficulty in seeing any justification for the Company’s complaints against Mr Williams for having drawn materially in excess of Mr Endacott, unless the loan is brought into account. Leaving aside the loan, the position was that Mr Williams had in fact received less than Mr Endacott even accepting that the credit card payments counted as remuneration. Taking into account the loan, the difference was approximately £12,000. And all this has no regard to any remuneration drawn by Mr Endacott after 3 September 2007.[141]Given my conclusion that Mr Williams was in principle entitled to the same remuneration as Mr Endacott, subject to any agreement that they might make between themselves to adjust for any substantial difference in earnings for the Company, to determine whether Mr Williams remains liable to the Company for excessive drawings (including the loan) – assuming the Company wishes to pursue the claim - a comparison will need to be made with the remuneration which has been allowed to Mr Endacott in respect of the period down to the time Mr Williams resigned. If Mr Endacott received a further £12,000 or more, it is difficult to see what Mr Williams will owe.

Conclusion

[142]In summary the result of the action is in my judgment as follows:(1) The Company should have judgment against Mr Williams and Global for the ICICI Bank payment less the £8,000 paid to Mr Dodshon.(2) The Company should be entitled to the declaratory relief claimed in respect of the HBOS and Standard Bank fees.(3) Should the Company wish to pursue its claim for excessive drawings, the loan and the credit card expenditure, Mr Williams should be ordered to pay to the Company the amount, if any, found to be due on the taking of an account to determine (i) what amounts he received from the Company or which the Company discharged on his behalf otherwise than on bona fide expenditure on behalf of the Company and (ii) what was properly due to him from the Company for his remuneration.[143]In relation to the taking of the account, item (i) will include not only the £19,500 loan, but also the other drawings and payments from the Company’s account, and will involve a determination of the question whether any and if so which items making up the £5,796,50 credit card expenditure was properly on account of expenditure for the Company.[144]Item (ii) will be, as a minimum, salary of £75,000 at the rate of per annum down to February 2008 (from which PAYE and empolyee’s NIC would fall to be deducted). However, Mr Williams would be entitled to remuneration at a rate not less than that allowed to Mr Endacott for that period; so in the taking of the account the amount of Mr Endacott’s remuneration will need to be considered.[145]As mentioned earlier, the Company has been “parked” save for this litigation. It liquidation is to be anticipated with the conclusion of this litigation. In that event any surplus assets of the Company (including of course the HBOS fee, the Standard Bank fee if recovered, and any recoveries in this action) after paying debts and winding up costs will fall to be distributed equally between Mr Endacott and Mr Williams (assuming that Mr Cullen is correct in saying that he has given up any financial interest in the Company). It may therefore be that the taking of account which I propose to order should be deferred and dealt with as an adjustment in the liquidation.[146]I shall hear further argument on this question and the form of the order necessary to give effect to this judgment.