“(a) regulate the conduct of the company’s affairs in the future; … (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; … (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company’s capital accordingly.”
“Conduct of anyone involved in a company may be so far removed from actually carrying on the affairs of the company that it does not amount to the conduct of the company’s affairs for the purposes of section 994. But in my view, section 994 is concerned with the practical reality which obtains on the ground in relation to the conduct of a company’s affairs, and there is no sound reason to exclude the possibility that what someone does in exercising or purporting to exercise managerial powers as a director or senior employee should not in principle qualify as conduct of the affairs of a company for the purposes of that provision.”
“to free the court from technical considerations of legal right and to confer a wide power to do what appeared just and equitable. But this does not mean that the court can do whatever the individual judge happens to think fair. The concept of fairness must be applied judicially and the content which it is given by the courts must be based upon rational principles. As Warner J. said in In re J. E. Cade & Son Ltd [1992] B.C.L.C. 213, 227: ‘The court . . . has a very wide discretion, but it does not sit under a palm tree’. Although fairness is a notion which can be applied to all kinds of activities its content will depend upon the context in which it is being used. Conduct which is perfectly fair between competing businessmen may not be fair between members of a family. In some sports it may require, at best, observance of the rules, in others (‘it’s not cricket’) it may be unfair in some circumstances to take advantage of them. All is said to be fair in love and war. the context and background are very important.”
“One of the most important matters to which the courts will have regard is thus the terms on which the parties agreed to do business together. These are commonly found in the company’s articles. They also include any applicable rights conferred by statute. In addition, the terms on which the parties agreed to do business together include by implication an agreement that any party who is a director will perform his duties as a director. Primary among these duties are the seven duties now codified in ss 171 to 177 of theCompanies Act 2006 . Under these duties, a director must act in the way which he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. There is also the wellknown duty to avoid conflicts of interest and duty: a director must avoid a situation in which he has an interest which conflicts with that of the company. Six out of seven of these duties are fiduciary duties, that is, duties imposed by law on persons who exercise powers for the benefit of others. Non-compliance by the Respondent shareholders with their duties will generally indicate that unfair prejudice has occurred.”
“Another common example is that of a small private company formed as a quasi-partnership in which the joint venturers expect to share in the business by reason of their continued employment therein and to be involved in management decisions by reason of their belonging to the board of directors. If that employment is terminated or that office is terminated, then the interests of the excluded joint venturer have been prejudiced. In such a case prejudice is obviously suffered, even though there is no quantifiable effect on the value of shares. Thus, the nature of the prejudice suffered will depend upon the nature of the interest in question.”
“143. The decision whether to declare dividends is one to be made in good faith in what the directors consider the best interests of the company, and the court will give weight to their commercial judgment: Corran v Butters[2017] EWHC 2294 (Ch) , [239]. And I accept that directors do not have to keep on meeting to discuss a matter when it is obvious that the decision would be the same: cf Re Sunrise Radio[2010] BCLC 367 , [141]. But here, my decision is that the directors made no bona fide decision not to pay dividends. 144. In my judgment, the failure to make a decision in good faith on this subject, when the Company (1) had sufficient reserves to declare dividends; (2) paid out large sums by way of ‘bonuses’ to two of the directors, thereby paying out significant parts of the profits to them; and (3) had lent large sums of money to those directors on loan accounts to pay personal expenditure, leaving the Company with less cash to pay dividends, amounts to conduct unfairly prejudicial to the petitioners.”
“Certainly the fact that a company is a small one, or a private company, is not enough. There are very many of these where the association is a purely commercial one, of which it can safely be said that the basis of association is adequately and exhaustively laid down in the articles. The superimposition of equitable considerations requires something more, which typically may include one, or probably more, of the following elements: (i) an association formed or continued on the basis of a personal relationship, involving mutual confidence – this element will often be found where a pre-existing partnership has been converted into a limited company; (ii) an agreement, or understanding, that all, or some (for there may be “sleeping” members), of the shareholders shall participate in the conduct of the business; (iii) restriction on the transfer of the members’ interest in the company – so that if confidence is lost, or one member is removed from management, he cannot take out his stake and go elsewhere. It is these, and analogous, factors which may bring into play the just and equitable clause.”
“The just and equitable provision nevertheless comes to his assistance if he can point to, and prove, some special underlying obligation of his fellow member(s) in good faith, or confidence, that so long as the business continues he shall be entitled to management participation, an obligation so basic that, if broken, the conclusion must be that the association must be dissolved.”
“Where equitable considerations of the kind identified by Lord Wilberforce apply, a court is likely to find that, although the conduct of the company was lawful according to its constitution, nevertheless the contravention of the special underlying obligation was a wrong done to some or all of the members that justifies the grant of relief. Nevertheless, it is salutary to remind oneself that the initial question on such a petition must be whether the conduct of which complaint is made was in accordance with the articles of association. If it was, then the allegation of some inconsistent obligation or right needs to be carefully scrutinised: In re Saul D Harrison & Sons plc[1995] 1 BCLC 14 at 17-18, per Hoffmann LJ. It is also pertinent to add that there must be something in the nature of the ‘special underlying obligation’ or the circumstances in which it arises that makes it enforceable in equity at the suit of the petitioner. An unenforceable agreement or understanding will not suffice: there must be something that makes it unconscionable for those controlling the company to disregard the agreement or understanding, and that will generally be found where there is mutuality between the shareholders as to the benefit and burden of the obligation, or some detrimental reliance or change of position that makes it inequitable to deny the obligation.”
“Applying traditional equitable principles, equity will not hold the majority to an agreement, promise or understanding which is not enforceable at law unless and until the minority has acted in reliance on it. In the case of an agreement, promise or understanding made or reached when the company was formed, that requirement will almost always be fulfilled, in that the minority will have acted on the agreement, promise or understanding in entering into association with the majority and taking the minority stake. But the same cannot be said of agreements, promises or understandings made or reached subsequently, which are not themselves enforceable at law. In such a case, the majority will not as a general rule be regarded in equity as having acted contrary to good faith unless and until it has allowed the minority to act in reliance on such an agreement, promise or understanding. Absent some special circumstances, it will only be at that point, and not before, that equity will intervene by providing a remedy to the minority which is not available at law.”
“Miss Garcia-Miller was in my opinion right to submit that there is academic and judicial consensus as to the meaning of the section and as to the mischief which it was intended to cure, viz. the abuse of power to the prejudice of shareholders who lack the power to stop that abuse. A mere majority shareholding may not suffice its holder: for example, the voting rights may not accord with the shareholding, as in Re H R Harmer Ltd[1959] 1 WLR 62 . But in the ordinary case where the shares carry equal voting rights, a majority shareholder will generally have the power to stop unfairly prejudicial conduct of the company’s affairs or any unfairly prejudicial act or omission of the company. In my judgment, the judge was justified in saying that s. 459 was essentially directed at cases where powers in relation to the conduct of a company’s affairs have been abused or there has been an unfairly prejudicial omission to use powers. … If the company through its directors or in general meeting exercised its powers to conduct the affairs of the company in an unfairly prejudicial manner which failed to give effect to the legitimate expectations of its contributories and that state of affairs could not be cured by the petitioners through the exercise of powers available to them, then a petition, I accept, would lie. But that is not this case. Mr Collings submitted that just as a minority shareholder, whose legitimate expectation to share in the management of a company is defeated by the majority shareholders excluding him from that management, can bring a s. 459 petition for the sale of their shares, so majority shareholders, whose legitimate expectation that the minority shareholder would contribute to that management is defeated by his misconduct necessitating his dismissal, can bring a petition for the sale of his shares. I do not accept that the two situations are at all comparable. In the first there is continuing unfairly prejudicial conduct of the affairs of the company by the majority shareholders, relief in respect of which may be given by ordering a sale of the shares. In the second the majority shareholders had a choice between dismissing the minority shareholder from working for the company or allowing their legitimate expectation to be fulfilled by letting the minority shareholder continue to contribute to the management of the company in some way. In the present case they chose the former, thereby putting an end both to their legitimate expectation and to the prejudicial conduct of the affairs of the company by Mr Hateley. No relief under s. 461 could properly be given by the court in respect of that conduct which the majority shareholders have remedied and there is no continuing unfairly prejudicial conduct of the affairs of the company when that conduct is in their hands alone.”
“Having stated that the Harmer case was authority for the proposition that a person with voting control cannot be oppressed by a person without voting control, he said ([1992] BCC 629 at p. 636G): ‘Even the wider phrase “unfair prejudice”, however, in my judgment is not apt to encompass prejudice from which the person whose interests are said to be prejudiced can readily rid himself. The prejudice relied upon by the petitioner is based solely upon the activities of the second and third respondents as directors of the company, a status which they only enjoyed until the majority shareholders removed them. That the second and third respondents were in breach of their obligations under the shareholders’ agreement, which I assume in the petitioner’s favour, does not in my view establish the proposition that the petitioner’s prejudice was unfair within the meaning of s. 459, because on that hypothesis the petitioner had an available method of bringing that prejudicial state of affairs to an end and indeed did so. I take into account the consideration that s. 459 does not require the unfair prejudice to be subsisting at the date of the presentation of the petition but is capable of sanctioning past prejudice by ex-members of the company. Nevertheless, the section was I believe enacted to enable help to be given to those who needed it and it seems to me to be improbable that the petitioner could show it fell into such a category.’ The good sense and correctness of those words seem to me obvious. In my judgment the judge was entitled to find Knox J’s observations in No. 2 persuasive on the ground that they contain a clear statement that the section is not apt to deal with a case where the petitioner can himself readily put an end to the unfair prejudice alleged.”
“[60] … The starting point should in our view be the general proposition stated by Nourse J in Re London School of Electronics Ltd[1985] BCLC 273 at 281,[1986] Ch 211 at 224: “Prima facie an interest in a going concern ought to be valued at the date on which it is ordered to be purchased.”
“The court will, in general, value the shares as if the unfairly prejudicial conduct had not taken place: Scottish Cooperative Wholesale Society v Meyer [1959] A.C. 324 at 364. The simplest method of achieving this may be, depending on the circumstances, to value the shares as at a convenient date shortly before the unfairly prejudicial conduct began. It may not always be appropriate to back-date the valuation in this way (see the section on “Date of valuation” at para.8-60 below), in which case a specific allowance may, where practicable, have to be made in the valuation for the unfairly prejudicial conduct. For example, in Lloyd v Casey [2002] 1 B.C.L.C. 454 Ch D, where the court had ordered the majority to buy out the minority because of excessive drawings from the company, the court directed that in ascertaining the price the assets of the company should be treated as increased by an amount equal to the excessive level of such drawings.”
“290. It is well established that an undiscounted valuation is usually appropriate when the successful petitioning shareholder is a quasi-partner as that expression is used in this branch of the law. Moreover, in Strahan v Wilcock[2006] 2 BCLC 555 , Arden LJ, with whom Richards and Mummery LJJ agreed, commented at 562 that it was difficult to conceive of circumstances in which a non-discounted basis of valuation would be appropriate where a quasi-partnership relationship did not exist. This point was expressly left open, however. 291. In Irvine v Irvine (No 2)[2007] 1 BCLC 445 , Blackburne J observed as follows: ‘A minority shareholding, even one where the extent of the minority is as slight as in this case, is to be valued for what it is, a minority shareholding, unless there is some good reason to attribute to it a pro rata share of the overall value of the company. Short of a quasi-partnership or some other exceptional circumstance, there is no reason to accord to it a quality which it lacks.’ 292. The recognition in that case of “some other exceptional circumstance” is a less narrow formulation that that posited by the Court of Appeal in Strahan, and points to the fact that there is no inflexible rule.”
“I would expect that in a majority of cases where purchase orders are made… in relation to quasi-partnerships the vendor is unwilling in the sense that the sale has been forced upon him. Usually he will be a minority shareholder whose interests have been unfairly prejudiced by the manner in which the affairs of the company have been conducted by the majority. On the assumption that the unfair prejudice has made it no longer tolerable for him to retain his interest in the company, a sale of his shares will invariably be his only practical way out short of a winding up. In that kind of case it seems to me that it would not merely not be fair, but most unfair, that he should be bought out on the fictional basis applicable to a free election to sell his shares in accordance with the company’s articles of association, or indeed on any other basis which involved a discounted price. In my judgment the correct course would be to fix the price pro rata according to the value of the shares as a whole and without any discount, as being the only fair method of compensating an unwilling vendor of the equivalent of a partnership share. Equally, if the order provided, as it did in In re Jermyn Street Turkish Baths Ltd. [1970] 1 W.L.R. 1194, for the purchase of the shares of the delinquent majority, it would not merely not be fair, but most unfair, that they should receive a price which involved an element of premium.”
“The ability of the Company to function depends upon the Petitioner and the First Respondent being able to work with each other as an effective management team, but the relationship deteriorated and by the end of 2017 it was evident that both the Petitioner and the First Respondent would not be able to work together.”
“Hi Tim My e-mails have stopped working and the account needs to be verified. Can you please e-mail me the password as I only have it at home. Thanks Lee”
“It would appear that for most days during your holiday a large number of attempts were made to access your account. 15 attempts were made this morning… I have re-enabled your account”
“At the time of Mr McMonagle’s employment with ECS (Anglia) Ltd in 2001, he was employed as the Technical Manager and in a position of trust. This was a senior position and part of that role included the operation and administration of the IT and Software systems which he had intimate knowledge and Administration and Password rights. This included taking regular tape back-ups of the systems so that the company could function after any catastrophic computer hardware failures by restoring data successfully from the tapes. In the week that McMonagle left the company, after being found to be working for another company whilst still being paid employment of ECS, it was discovered that no back-up data had been taken. This was to cover up what he had been doing by deleting various emails, estimates and quotations so they no longer appeared on our system. This was confirmed when we were able to get some of our valued customers to send us back copies of the same emails and quotations that had been sent by Mr McMonagle on behalf of ECS but deleted from our system. We were further given copies of subsequent email and quotations to the same clients with virtually identical working from his new company but with a more competitive offering.”
“Helpful....is that a new word that you have learnt? What do you want me to do? What do you really expect of me? I am working 7 days a week and have been for as long as I can remember I am working 14+ hour days week…. in.... week out.... There are many calls on my time and your upgrades are just two of them. My diary is full for at least the next six weeks. As I am writing this I have finally realised what a prat I have been in working these ridiculous days and hours, so with immediate effect I intend to work the same number of days and hours as the rest of the management in ICS. Have a day off every now and again to play golf, roll in late, leave off early, leave my phone off (or in the office) when on holiday, ignore emails when on holiday, etc. etc. What gets done, gets done and what doesn’t get done, doesn’t get done. I really don’t give a flying fuck anymore.”
“Tim, Before we meet I think it would be worth you providing clarification regarding the cheque that was drawn from the Partnership Bank Account. On17th June 2016 a cheque was made out for Tim Tax for£7,816.46 (copy attached.) This payment was unusual and not in the normal tax payment cycle. It was also unusual because payments to HMRC are paid directly via bank transfer. I queried this with you and you advised that you didn’t know what it was for and that Thomas told you to pay it... I know you well enough to understand that you wouldn’t make a payment for£7,816.46 without knowing the reason why. As I was not satisfied with your response I obtained a copy of the cheque from Lloyds bank (copy attached.) The payee was not HMRC as detailed on the cheque stub, but made out to you personally. I do not understand why you would mask a payment to yourself when you could have made the payment with the outstanding balances that have been due for some considerable time. The current situation is clearly not sustainable and I think that it would be prudent to meet and seek a resolution that has the least impact on our employees.”
“Happy to provide the clarification that you seek, I have no issues with your investigation. It’s a tax bill, as I told you at the time. The partnership has always paid the partners tax bills. Tracey and I had a tax bill that was paid at source direct to HMRC. The payment is reimbursement for the tax paid at source. The Tracey/Tim partnership balances will reflect this payment in the 2016/2017 partnership accounts and be reduced accordingly. There were sufficient funds in the partnership account to cover this payment. There was no transfer of funds from the limited company to cover this payment. This payment had no implications on the limited company whatsoever. The timing and precise amount of the payment was to ensure the correct audit trail and allocation for HMRC accounts/partnership accounts/personal tax accounts. With regard to timing, as you are aware there were four - Lee/Maria/Tracey/Tim - tax payments paid to HMRC 17 days later on the 4th July. There were sufficient funds in the partnership account to cover these payments. There was no transfer of funds from the limited company to cover these payments. The four payments had no implications on the limited company whatsoever. HMRC payments are not always paid by BACS, they have also been paid by cheque. No great mystery, so let’s move on to more pressing matters.”
“• Lee/Tim personal withdrawals from Ltd Company - Gary To Contact External Mediator.”
“I am sending this email after discussions with the both of you with the hope we can all sit down and have open and honest discussions about the future of ICS and the individuals most involved with it. I still believe that both personally and as a whole it is in the best interests of all parties to try to find a common ground/resolution to the current climate we all find ourselves in. Setting aside personal involvements I believe discussions should centre around the company and how issues (both with a personal and non-personal involvement) can be resolved in the best interests of the company and parties involved. This will obviously have to include certain issues that are not the easiest to discuss but, just the same require resolution. I believe we should arrange the meeting in a neutral, non-work involvement which may help to relax the talks, I am open to suggestions as to where? Would you rather it was just the 3 of us or do you wish to involve Becky as well? Finally, I personally hope we can all find a way forward, this company and the two of you have both helped me and my family through some really rough times but also good times, so I hope the contents above is taken in the way in which it is meant to be received.”
“1.2. LH advised that he had instructed his solicitors some two weeks previous to write to MH with three proposals:- 1. That ICS was to be sold in its entirety, TM stated that how could he possibly make this proposal without any prior discussions with TM or TKM. TM stated his disappointment in learning this information some two weeks after the fact. TM stated that neither he or TKM were interested in selling their share of the businesses. 2. MH to buy LH share in the businesses. Apparently MH has no desire by buy LH share in the businesses. 3. LH to buy MH share of the businesses LH stated that he was not prepared to put himself in debt to proceed with this option. LH stated that it was a TM proposal to put himself in debt to buy MH share of the businesses. TM stated that he made no such proposal. TM stated that he did make a proposal that LH should discuss this option with MH with a view to him making a fair and reasonable offer in order to move the divorce financial settlement forward and this did not include the suggestion that he should put himself in debt. TM stated that he only made the proposal in an effort to broker a deal and in view of LH reaction would have no further discussions with him on LH/MH divorce. In view of the above it was agreed that none of the options appeared feasible.”
“LH stated once again that he would like to sell his share of the businesses and thought that TM, TKM and MH might like to purchase. TM advised that neither TM or TKM were interested in buying his share of the businesses. TM stated again that he did not want LH to leave the business.” 135. In respect of Mr Harvey’s competitive trading it goes on: “1.8. TM asked if LH had started a new company. LH stated that he had not. 1.9. TM asked if LH had any connection with any other businesses and/or entities. LH said ‘Ah that’s different’ and stated that yes, he had ‘started a separate enterprise’. 1.10. TM asked if LH had undertaken any work and/or invoiced for any work under this new business. LH replied that he did not have to answer that question, TM replied that he already had answered the question by not replying no. 1.11. TM asked if any materials purchased by ICS had been used in the above work, LH declined to answer. 1.12. LH made an allegation against TM relating to payments that had been made to two companies. Immediately after the discussions ended TM took two files off the shelf put them in front of LH to prove what the payments were for. LH accepted the information provided and agreed that the allegation was incorrect and was withdrawn. No apology was sought or offered. 1.13. TM requested an undertaking from LH that he would not take any further actions that were likely to damage the ICS businesses. LH gave an undertaking and his word that he would not take any further actions that would damage the ICS businesses. 1.14. TM requested an explanation as to the transfer of£5,008.00 on the22 August 2017 from the ICS partnership account to his new personal bank account, TM stated that this payment was made without any prior discussion. LH stated that he made the payment because he was pissed off. TM stated that the payment now meant that LH was not owed any monies from the partnership whilst the other three partners were still owed monies from the partnership”
“1.15. TM requested an undertaking from LH that he would not transfer any other monies from any of the ICS partnership or ICS limited bank accounts. LH gave an undertaking and his word that he would not transfer any other monies from any of the ICS partnership or ICS limited bank accounts. The only exception to this undertaking would be that LH could pay himself the normal level of monthly business expenses. 1.16. LH raised again the subject of a cheque to the value of£7,816.46 raised by TM on22nd June 2016 . TM referred LH to the email dated 20" September 2016 which answered in detail what the cheque was for. LH stated that TM had lied to him about the cheque, TM stated that he had not.”
“Within section 1.3 of your e-mail you have stated that you do not wish me to leave the company. Unfortunately recent actions and comments suggest otherwise, which are detailed below. • Sunday 20th August you sent an e-mail, copying in numerous people and called me an arse and accused me of playing games. • Sunday 20th August my e-mails were deleted. • Friday 22nd September my e-mails were deleted. • Friday 22nd September my files were deleted from the server, • Sunday 24th September my e-mails were deleted, • Monday 25th September my e-mails were repeatedly deleted, • Monday 25th September my internet access was removed. • Sunday 1 October I could not connect to the e-mail server, • Monday 2 October I could not connect to the e-mail server. • This abuse, bullying and harassment has been recorded since May 2013. • The document recording a small proportion of these incidents is attached. • Your actions have and continue to prevent me from working on current and future ICS projects. In section 1.16 of your e-mail the issue of the cheque raised from the Partnership last year has been discussed again. We have a different account of what occurred, the fact that both sections are the cheque are named differently proves that you behaved dishonestly. Advice that I received last year confirmed that you had acted in bad faith, which was sufficient reason for the Partnership to be dissolved. During our meeting of Friday 8th September you also made an undertaking that you would not transfer any other monies from any of the ICS partnership or ICS limited bank accounts. Can you provide written clarification regarding the payment made to John Slater and Haward detailing the goods and services provided to ICS (Eastern) Ltd. This payment was made on31 March 2017 and amounted to£8,385.00 . Can you provide written clarification regarding the payment made to B&F Mechanical detailing the goods and services provided to ICS (Eastern) Ltd. This payment was made on30th November 2015 and amounted to£7,200,00 , With regards to other items, you are fully aware of my ongoing divorce. With the ongoing open exchange of information between MH and TM I have been advised not to provide any comment, Due to your actions I believe that my position at ICS has become untenable.”
“Lee.... Thank you for responding. I accept your email as an acknowledgement that the events detailed relating to the meeting on the 8" September 2017 are a true and accurate record of the discussions. I am, however, extremely disappointed with your comments and continued accusations. My email was a genuine effort to move things forward, you have rejected this effort. Your admission – albeit dragged out – that you had started your own business came as a huge body blow to me (and I expect Gary and Becky as well). I still cannot understand why you want to leave ICS, it has provided a good living to us all yet you seem intent on destroying the company and the associated employment of all. My email even gave you the get out to close down your new company, which again you have rejected. You continue to dwell on subjects that have been discussed and documented at great length in the past and have absolutely no bearing on where we are now. I have stuck to agreement that was made in October 2016 to move on from events in the past, however you continue to ignore and break this agreement, You have rejected every attempt and proposal that I (and Gary) have made in trying to resolve the situation, You have made relentless unsubstantiated allegations against me which I have ignored in an effort to resolve the situation rather than escalate it. If you continue to make these unsubstantiated accusations and/or repeat them I will take further action. I have provided answers to every one of your questions. You have not provided answers to any of the question put to you regarding your new business(es). The questions relating to your new business(es) have nothing to do with your divorce, it is about understanding what damage you have done and/or are doing to ICS. You are obviously pursuing your own agenda and throwing out unsubstantiated allegations in an effort to create a smokescreen to cover your duplicitous activities. The actions you have taken and are continuing to take are prejudicial to the best interests of the company. I repeat, for the umpteenth time, that I do not want you to leave the company, I have not carried out any actions that negate this statement, as I said at the meeting on the 8" September loved you like a brother and do not understand why you are acting in this manner. I no longer have any idea what you want. I am at a loss to know what to do next. Do you want me to sell up, retire, leave and walk away from the company? As you know I am 63 this year and really do not need all this pressure and stress that you are creating and applying, it is now affecting my health and wellbeing. Just tell me what you want to do and/or you want me do and if it is in my power I will do it. This my final throw of the dice, I have tried everything, it is all in your hands now you can either come back from your position or not. I hope you will be in the office tomorrow and you can tell us all what you want to happen next. If you are not in the office tomorrow please advise when you are available to tell us all what you want to happen next.”
“Lee .... 1. Further to our brief meeting/discussions on Friday 6" October 2017:- 1.1. Your proposal to draw a line in the sand and just carry on as we are currently was rejected by me on the grounds that:- a) correct and proper company operation in the current situation is not sustainable and b) Your refusal to withdraw your unsubstantiated allegations against me and c) Your refusal to close your new business(es), provide full disclosure of your activities, transfer all profits/ proceeds/assets/etc. to ICS and return all ICS equipment that is stored in any locations. 1.2. You then stated that you would be prepared to close your new business(es) but would not provide full disclosure of your activities or transfer all profits/proceeds/assets/etc, to ICS or return all ICS equipment that is stored in any locations. This offer to close your business(es) was linked to demands that ICS IT services and financial account services would be carried out by others. I asked where this left me. I have carried out all ICS IT services since the company inception in 2001 and the financial accounts since 2011 and saw your proposal as your open intention to remove me from the company. To use your new business(es) as a bargaining chip is clearly unreasonable. 1.3. I stated that investigations into your unsubstantiated allegations relating to your emails had revealed the true extent of your duplicitous activities. My investigations are currently back to the early part of 2017 and am staggered how long you have been conducting activities with your new business(es). 1.4. You have rejected every attempt and proposal that has been made over the last year or so to resolve the situation, whilst actively conducting activities with your new business(es). You have now pushed me too far and I offered to leave the company. Make Tracey and I an offer and we will walk away, I recall that your valuation of ICS was somewhere between£500K and£1M I pointed out that of everyone in the company I was probably the only one that didn’t actually need it due my financial status and was completely and utterly fed up with trying to find ways forward. I certainly do not need all this pressure and stress that you are creating and applying. 1.5. Following large periods of silences between us all it was quite obvious that there was nothing more to say. I shutdown my laptop, packed up and left. 2. Following Becky’s email (thank you Becky, it contained a mountain of useful information and kept me busy reading all weekend) I now intend to seek legal advice on behalf of the company and shareholders. Advice will be sought regarding your duplicitous activities and whether the actions you have taken and are continuing to take are prejudicial to the best interests of the company Advice will be sought as to whether the shareholders have any legal redress relating to your actions. Advice will be sought as to what legal remedies are available to resolve the current situation. Advice will be sought as to the best way to extricate Tracey and I from the company. 3. I have considered your proposal to dissolve the partnership and agree that that this the best course of action. It removes one layer of complication in the extrication process. I have consulted Tracey and she agrees. I have not yet consulted Maria. Assuming Maria agrees then I believe we should proceed as follows:- Discuss with Thomas at Larking Gowen the legal and financial process to dissolve the partnership. As you have already transferred all the monies owed to yourself - with no prior discussion with any of the other partners or shareholders - you have no monies left owed. Maria, Tracey and I are still owed monies from the partnership, monies that we have already paid tax on. Tracey and I will take the monies owed in the very near future and I will transfer the appropriate monies across I have not yet discussed with Maria the monies she is owed and/or what she would like to do. I will discuss with her this week and advise further. Reviewing the Lloyds partnership account I can see that you have changed your account details from yours and Maria’s joint account … to a different account. You have also changed Maria’s account details from yours and Maria’s joint account … to a different account ... I understand from Maria that the new account details are your sole personal account to which she has no access to. With these new details any payments of outstanding partnership payments to Maria would be paid into your sole personal account which she has no access to. Your motives for doing this would appear to be questionable and I will consult with Maria further. I would suggest that you discuss this situation with Maria and change these details so that she receives the monies she is entitled to. If you do not change these details within the next 7 days I will consult with Maria and act on her instructions and change them myself if so requested. When all the outstanding monies are paid I propose that the partnership be dissolved and any remaining assets be transferred to the Ltd company. Assuming that this is all achievable in the next few weeks, I believe that this will then leave us all individually responsible for the taxes that are required to be paid on the 31"January 2018 and31 July 2018 . 4. Management meeting - Friday 13" October 2017. Due to my commitments this week I am trying to arrange to see solicitors on Friday 13" October 2017 and therefore propose that the management meeting be cancelled. We have another management meeting planned for Friday 3" November 2017 and I believe that following legal advice this will provide an opportunity to discuss the situation further, We also have planned a meeting with LG - Mark and Thomas on Friday 3" November 2017 and I believe this will also provide an opportunity to discuss the situation with them, You have arranged for our new Barclays account manager to attend the offices on Friday 13" October 2017 at 09:00. In view of the current situation, my probable inability to attend and your duplicitous activities I believe that it would be inappropriate for you to meet him without me present therefore would suggest that this meeting be cancelled.”
“Tim/Lee.... I no longer wish to be copied in to these emails unless there is some positive move to resolution and/or the contents has a direct involvement upon myself and how the company will continue, the stress of this situation has made me very unwell over the weekend, and for that matter the past few weeks/months /years and continues to do so. I have always carried out my role within ICS to the best of my abilities and will endeavour to do so over however long the company has left in its current state. I have made over several years now repeated efforts to resolve the issues that have grown between you, trying not to take sides and I rate this day as one of the saddest days of my life, 15 years of effort (and reward) now seems like a total waste of time. I have made repeated statements in which I have said I did not want to see either of you leave the business for both personal and professional reasons. The only thing I ask for is clarification on where this all leaves myself and my family, who by the way are also now being directly impacted by this situation. I have recently taken an extension of my mortgage of£30,000.00 based upon my earnings at ICS, I really wish I hadn’t. I also worry for the future for all of your employees, • Becky who has her student fees to pay. • Toby, Matt, Shaun, Jimmy, Mossy, Jon who all have young families, mortgages etc, • Mark F who has himself invested 15 years into the company • Everybody else who it will affect one way or another, This ways very heavily on me as I am sure it must do both of you.”
“Dear All, I have deliberately refrained from replying to all of the e-mails that are circulating as it is not allowing any progress to be made whatsoever. After the meeting on Friday I asked Becky to investigate starting mediation to find a way forward, even if it is just in the short term. There was no intention to imply / include any financial elements within that request, It is clear that everyone is suffering, which no one is benefitting from. Can I suggest that nobody takes any action whatsoever or send any further correspondence until we begin mediation. If everyone is in agreement then I will speak to ACAS regarding their availability. I firmly believe that this will be the best way forward and look forward to receiving a positive response.”
“I see no benefit in arbitration and/or mediation, you have made your intentions clear through your duplicitous activities. I do not agree to you contacting ACAS and/or wasting time and money whilst you continue to pursue your own agenda. I will continue with the actions detailed in my email this morning. Please confirm that the management meeting is cancelled. Please confirm you have cancelled the Barclays account manager visit. Please confirm your intentions regarding Maria’s bank account details. Gary/Becky.... This is the last email I will copy you both in on relating to this situation. I will not copy you into any further emails relating to this situation and/or update you on my meetings with the solicitors unless you request it. I agree that this is an appalling situation and it is my desire and stated intention to bring this whole sorry saga to a quick and speedy conclusion.”
“I am disappointed to receive yet another e-mail from you of this nature. With regards to the content I do not wish to comment further at this stage other than the following:- 1 . I am disappointed that you do not wish to attend mediation to help resolve the difficulties that we face. 2. We both agreed during our meeting of Friday 8" September that no monies would be transferred by any party. My Directors loan account currently stands at£57,332.00 , I have not removed any monies owed as this was the agreement that we both made. 3. If you wish to cancel the management meeting then please do so. 4. At your request I will cancel the meeting with our new Barclays account manager. 5. I have no desire for you to leave the company, 6. As stated within our meeting I do not wish to purchase your shares. I you would like to sell your shares then can I suggest that you re-consider selling the business in its entirety as previously suggested.”
“Lee..... Re point 2, we had no discussions relating to directors loan accounts. Your directors loan account may well stand at the figure you have quoted and I am sure my directors loan account will have a similar figure. I am unsure why you have now raised this, as you are fully aware directors loan accounts are ‘virtual’ accounts and are not an indication of any actual monies owed. As with every other year LG will update the directors loan accounts at the end of our financial year in Feb 2018 to reflect dividends and drawings. There may well be monies owed to all shareholders at the end of our financial year in Feb 2018 but we are unlikely to know until May/June 2018 when LG produce the draft accounts. As you are aware I have been advising the management team for months that the company is making regular month on month losses. Dividends can only be paid on profits, if there are no profits there can be no dividends, With no dividends and continuous drawings on the directors loan accounts the numbers will keep decreasing. I think we need to arrange a shareholders and partners meeting to discuss and resolve the issues surrounding your proposal to dissolve the partnership. Could you please advise three separate dates and times over the next week or two suggest we allow three hours - when you would be available. Once I have your proposed dates I will liaise with the other shareholders/partners. As you have already transferred all the partnership monies owed to yourself - with no prior discussion with any of the other partners or shareholders you have no monies left owed, Maria, Tracey and I are still owed monies from the partnership, monies that we have already paid tax on. As you proposed the partnership dissolution you were obviously aware that all outstanding monies would need to be transferred and paid to allow it to be dissolved.”
“Agenda item 1 – Dissolving the ICS partnership 1-To discuss, resolve and, if determined by the participants, action the proposal made by LH to dissolve the ICS partnership. Following LA suggestion of dissolving the ICS partnership in previous emails, TM, TKM and MH are all in agreement that this should go ahead. LH cannot remember suggesting that the partnership should be dissolved. Resolution To dissolve the ICS partnership. Voting results – For the resolution – LH, MH, TM, TKM Against the resolution”
“1.2 – Agreement as to the arrangements of the outstanding monies associated with the partner’s individual accounts. LH, MH, TM and TKM are all in agreement that MH, TM and TKM are to withdraw all outstanding monies due to them and to pay into their individual accounts. LH has previously taken what is due to him. A rough figure of£112,000 was mentioned as money to be paid out of the partnership.” 147. At agenda item 2 the following is recorded: “Agenda item 2 – ICS Ltd Valuation To discuss, resolve and, if determined by the participants, action the proposal made by LH to employ a company to value ICS Ltd. LH would like to have ICS Ltd valued whereas TI, TKM and MH do not feel it is necessary at this current moment in time. Resolution To employ a company to value ICS Ltd. Voting results-- For the resolution - LH Against the resolution -- TM, MIH, TKM”
“Agenda item 3 – To request LH to explain to the shareholders his actions in setting up a new company carrying out similar work to ICS Ltd. To request answers to the questions previously submitted to him in the email dated27th September 2017 , items 2.1 to2.19 as detailed below: 2. Items of information that are required from Lee Harvey. 2.1 The name of your new business. Please confirm that you have started only one new business. 2.2 The type of business i.e. sole trader, partnership, ltd company, etc. 2.3 The date the new business was started. 2.4 What type of works is being/has been undertaken by the new business. 2.5 Names of any other persons that are involved with the new business. 2.6 If applicable, the date that any bank accounts were opened in the new business name. 2.7. What are the contact email addresses associated with your new business? 2.8. Names and details of all persons and/or organisations that you have had discussions with relating to your new business. 2.9. Has your new business undertaken any work for any ICS customers either current and/or historical. 2. 10. Has your new business purchased any material from any ICS suppliers either current and/or historical. 2.11. Provide full details of all work undertaken by your new business. 2.12. Provide dates when work was carried out for your new business. 2.13. Have any ICS materials been used in carrying out work for your new business. 2.14. Have any ICS assets been used in carrying out work for your new business. 2.15. Have any ICS consumables been used in carrying out work for your new business. 2.16. Please provide a full list of all ICS (Partnership and Ltd) assets that are in your possession. This list should contain all items of equipment including, but not limited to, all PC equipment, laptops, mass storage devices, controllers, miscellaneous equipment, etc. etc. The list should detail all serial numbers of PC equipment, laptops, controllers, etc. Your list will be compared with our records and/or information. 2.17. Have you any ICS purchased and/or owned equipment, i.e. controllers, etc. stored in any locations. 2.18. Are you prepared to close down your new business, provide full disclosure and transfer all profits/proceeds/assets/etc. to ICS Ltd? 2.19. Please complete your whereabouts on the programme of works. Entries to include historical – from1st Jan 2017 , current and future.”
“LH informed the rest of the participants that he has been advised to not discuss the subject and he therefore refused to answer the above questions. He believes that there is not currently a conflict of interest based on the fact that the new company is not currently trading. TM suggested he had evidence of LH new business dealings, however, this was not produced during the meeting. It was suggested that the evidence had shown that the new business had been trading for over 1 year. LH advised that he had previously offered to shut down the new business however, TM continues to request information regarding the activities of the new business in order for ICS Ltd to move forward. TM suggested that this information is key to the future of ICS Ltd. TIM requested that all profits of the new business are to be transferred to CS Ltd and for all of the ICS Ltd’s equipment to he returned. LH suggested that he would like to seek further advice before disclosing any information to MH TM and TKM. TM expressed his disappointment in LH’s refusal to answer the above questions and referred to an email received from Thomas at Larking Gowen which explains that a Director of a company has the legal obligation to put the interests of the company and is employees first. Both TM and LH are in agreement that there is a severe lack of trust between them as a result of current and previous issues. LH spoke about TM’s previous cheque withdrawal from the ICS partnership and confirmed that this could be a contributing factor of him setting up a new business. TM suggested that these concerns were addressed at the time and an explanation for the cheque withdrawal have previously been given in writing.”
“Resolution 1 – Removal of LH’s authorisation regarding the company bank accounts to protect the partnership and ICS Ltd TM, TKM and MH were all in agreement that this should go ahead. TM has concerns that ICS Ltd is currently losing money and could be as a result of LH’s new business. TM and MH expressed concerns that LH will withdraw money from ICS partnership or Ltd Company and therefore requested LH’s word that he will abide by the above decision. TKM also believes that this is the right decision based on the current situation. LH is unsure as to whether this decision is legally binding and will be seeking further advice on the matter however, he had given his word that he will not withdraw any future monies. LH raised the issue of TM withdrawing£20,000 in August 2017 and TM advised that this was to match LH’s unauthorised withdrawal a year prior. LH has since taken a further payment of£5,000 .”
“Resolution. To protect ICS partnership and ICS Ltd information, assets and future, with immediate effect, Lee Harvey is no longer authorised to carry out any banking and/or financial activities on behalf of ICS partnership and/or ICS Ltd. For the avoidance of doubt this removal of authorisation includes, but not limited to:- - Access to any and all bank accounts associated with 1CS partnership and/or ICS Ltd. - Online access, logging on and/or viewing any and all bank accounts associated with CS partnership and/or CS Ltd. - Performing and/or carrying out any transactions using any and all bank accounts associated with CS partnership and/or ICS Ltd. - Signing cheques, associated with any ICS partnership and/or ICS Ltd bank accounts. … For the avoidance of doubt, Lee Harvey is still authorized to use his issued ICS Ltd credit cards and, in the usual manner/procedures, all use must be supported by the appropriate supporting documentation/receipts. Any future expenses claims made by Lee Harvey should be submitted to the management team for approval and payment.”
“Resolution. To protect ICS partnership and ICS Ltd information, assets and future, with immediate effect, Lee Harvey is no longer authorised to represent ICS and/or attend any meetings of any type or location on his own. If Lee Harvey is requested to attend any meetings and/or needs to arrange any meetings of any type or location he will seek the approval of the management team for either approval of attendance on his own or at the management teams discretion an individual will be appointed to accompany him. Voting results – For the resolution – TM, AMH, TKM Against the resolution – LH Lee Harvey is required to acknowledge the shareholders voting and confirm his acceptance of and adherence to the resolution.”
“Resolution. To protect ICS partnership and ICS Ltd information, assets and future, with immediate effect, Lee Harvey is required to complete the programme of works with his location on every day. Entries to include historical – from1st August 2016 , current and future. Voting results – For the resolution - MH, TM, TKM Against the resolution – LH Lee Harvey is required to acknowledge the shareholders voting and confirm his acceptance of and adherence to the resolution”
“Resolution. Based on the discussions and information received today the shareholders have concerns that ICS partnership and/or ICS Ltd information and/or assets are being used by Lee Harvey in his new business[es]. Accordingly Lee Harvey is required to return to the management team, within 7 days, the following items of equipment which are the property and assets of ICS Ltd. Upon receipt, the management team will inspect the equipment and decide on its future allocation and/or use. Voting results- For the resolution – AH, TM, TKM Against the resolution – LH Lee Harvey is required to acknowledge the shareholders voting and confirm his acceptance of and adherence to the resolution. This equipment list is not a complete and/or up to date list of Integrated Control Solution (Eastern] Ltd assets in the possession of Lee Harvey and further equipment lists will be issued shortly. Provisional equipment List as at31 October 2017 :- 1. Sony Laptop VPCS1 IV9E Serial No C10483CL 2. Dell Laptop M6700 Serial No 1YIZRY1 Microsoft Surface Book ITB purchased by ICS Ltd on11th September 2016 for£ 2,743.98 via Lee Harvey expenses claim. MAC Book MI839 purchased by ICS Ltd on17 December 2016 for£1,249.00 via Lee Harvey expenses claim. Dell Laptop purchased by ICS Ltd on23 March 2017 for£2,216.26 . via Lee Harvey expenses claim. HP Elitebook 840 G3 T9X59EA purchased by ICS Ltd on19th April 2017 for£ 1,243.92 via Lee Harvey expenses claim. Linkstation 220 NAS 8TB 2BAY 2X 4TB HDD 1X purchased by ICS Ltd on23rd June 2017 for£235.34 via Lee Harvey expenses claim.”
“Following our discovery of Lee’s unlawful activities in September 2017, our relationship became strained to the point that by December 2017 I concluded I could no longer continue to be in business with Lee or Maria.”
“At that meeting there were some ‘without prejudice’ discussions between the shareholders and in particular the two Directors of the company, namely Tim McMonagle and Lee. In essence the outcome of those conversations was that Mr McMonagle is insisting that the monies generated by the company set up by Lee (ENJ Control Solutions) must be repaid to Integrated Control Solutions (Eastern) Ltd immediately. Mr McMonagle is also proposing the following:- 1. That Lee should relinquish his shares in ICS (Eastern) Ltd and sell them back to the company. 2. Lee should accept that his Directors’ Loan account will be frozen. 3. Lee must give up rights to any dividends. 4. Lee must remain on basic salary only. In essence Lee is being asked to ‘walk away’ from the business because, from Mr McMonagle’s perspective, Lee’s conduct has made the situation untenable. Maria has absolutely no idea as regards whether Lee intends to accept the proposals outlined by Mr McMonagle or not. From Maria’s perspective these conversations, as you will appreciate, have caused her significant concern and any decision that Lee makes in respect of both his shares and the remuneration that he receives from the company will have an impact in relation to Maria and, more importantly, the children. As a result of the conversations which took place on 4 December at the emergency Shareholders Meeting I am instructed to seek the following clear and unequivocal undertakings from Lee which are:- He will not dispose of his 25% shareholding in ICS (Eastern) Ltd without either Maria’s formal written consent or Order of the Court. 1. He will not resign as a Director without Maria’s consent. 2. He will not compromise any entitlement to dividends whether accrued or accruing. 3. He will not enter into any agreement to dispose of his shares (or agree restrictions on the disposal of his shares). 4. He will not compromise any claim he has against the company (including, without limitation, whether in respect of remuneration or his Directors’ Loan account). Maria also requires clear confirmation from Lee as to his intentions in respect of the proposals outlined by Mr McMonagle.”
“Item 1.4 • The Director's loan account split figures had been received from Thomas Norman. Maria was aware of the split between her and Lee - there was enough money in the loan account to pay Lee's tax liability but not enough to pay Maria's. • There was enough money in Tim's loan account to cover both Tim and Tracey's tax liabilities • Method of payment needs to be confirmed to Thomas Norman and Mark Curtis … Item 5 – Update from LH on the advice sought and the subsequent disclosure of information made to TM … • In view of LH admissions, deception, theft, fraud, breach of fiduciary duty, etc. TM stated that he could no longer work with LH and asked that LH review his position and consider resignation of both his employment and directorship. … Item 7 -- Update from LH on the advice sought. Lee stated that Tim’s proposed resolutions were repressive and not enforceable however, he would stick by them – therefore the resolutions would remain in place until alternative resolutions had been agreed. Maria and Tim stated that they had already received legal advice and both confirmed that the resolutions were in fact legally binding and enforceable.”
“1. That ICS will provide a quote to extend the current contract on a month by month basis, initially for 3 months from the 1April 2018. 2. That the Trust expressed disappointment in the way you communicated the current situation to us and how changes to our system were made without discussion with ourselves. 3. That the Trust request ICS consider not applying any restrictive covenant to Lee Harvey which would prevent him working with the Trust in the future. 4. That ICS confirmed the new working arrangements and that Toby would be replacing Lee as our main site contact. The Trust will arrange remote access for Toby on the understanding that no changes will be made to the User accounts without agreement from the Trust.”
“I have today transferred£30,000.00 from Lloyds Ltd Current to Lloyds Partnership current to cover for the following tax payments:- Lee£9,538.12 Maria£2,839.02 Tracey£1,909.66 Tim£10,292.22 From this transfer I have also paid the£20,000.00 to Tracey which matches the£20,000.00 paid to Lee and Maria in August 2016.”
“It includes details of the current bank position and the cash flow forecast. The company is in a perilous financial position. In light of Mr Harvey’s previous unauthorised withdrawal of sums from the company bank account, his admitted fraud, the current financial position of the company, Mr McMonagle has taken steps to limit access to Mr Harvey to the bank accounts so that he may ensure that only salaries and suppliers are being paid. Mr McMonagle suspects that Mr Harvey wants access in order to withdraw money against his directors loan account. The priority at present must be the financial security of the company and its ability to pay staff and meet its liability to trade creditors. The company will not be in a position to pay any dividends in January 2018 or as matters stand in February 2018. That applies 226. to all shareholders and neither Mr McMonagle nor Mr Harvey will therefore receive dividends this month.”
“Mr and Mrs McMonagle are in the same position as your client. They are partners entitled to the same shares. They are not treating your client any different to themselves. The partners have agreed to dissolve the partnership but that process is ongoing and until the company is on a stable footing the dissolution cannot be concluded. Mr and Mrs McMonagle would like to happen as soon as possible but due to the impact Mr Harvey’s conduct has had on the management of the company and your client’s obstruction of Mr McMonagle’s attempt to remove him has the consequence of prejudicing the effective management of the company.” 195. It went on: “The relationship between the directors and shareholders is such they cannot function collectively the future of the company requires the parties to reach terms or it will be placed in liquidation. Mr and Mrs McMonagle are willing to purchase your client’s shareholding in the company and they have agreed the company will fund a commercial valuation to assist the parties find a resolution which may avoid either insolvency or a costly litigation in the form of a petition to the Business and Property Courts on unfair prejudice grounds. Whilst the company has had a successful past due to the hard work that Mr McMonagle and Mr Harvey have put in, any assumption the current or future trading position will be unaffected by the impact of recent events is simply unrealistic. Mr and Mrs McMonagle proposed a meeting between shareholders and their representatives on the29th January 2018 or such other time as may be agreed after the joint commercial valuation is available.”
“Payment for overtime will only be made by special prior arrangement; otherwise you are expected to work such additional hours as are reasonably necessary for the effective performance of your duties. If you are required to work on weekends, at a client’s site, at the request of the Company, then the overtime will be calculated at the rate of normal pay for the actual hours worked and associated travel time. If you are required to work on Saturdays, at a client’s site, at the request of the client, incurring an premium rate to the customer, then the overtime premium will be calculated at the rate of one and a half times normal pay for the actual hours worked and associated travel time If you are required to work on Sundays, at a client’s site, at the request of the client, incurring an premium rate to the customer, then the overtime premium will be calculated at the rate of twice normal pay for the actual hours worked and associated travel time If you are required to work on a Public Holiday, at a client’s site, at the request of the Company, then the overtime will be calculated at the rate of normal pay for the actual hours worked and associated travel time.”
“You are required to submit an accurate weekly timesheet indicating the hours worked for the prior week, and, where applicable, the nature of the work and the associated project or projects. You are solely responsible for your own timesheets. Completed timesheets must be submitted by 10.00am on the Monday before the last Friday in the calendar month. Timesheets may be submitted verbally to the administrator, at this time providing a physical copy is submitted within 3 working days. Failure to submit a physical copy will result in an on-going ‘flat rate’ payment without any overtime included until the physical copies are submitted. Any overtime owed during the ‘flat rate’ period will then be recompensed.”
“Item 1.4 • The Director's loan account split figures had been received from Thomas Norman. Maria was aware of the split between her and Lee - there was enough money in the loan account to pay Lee's tax liability but not enough to pay Maria's. • There was enough money in Tim's loan account to cover both Tim and Tracey's tax liabilities • Method of payment needs to be confirmed to Thomas Norman and Mark Curtis”
“Hi Trish, We can discuss this on Monday but the quotation seems expensive and to wait 7 weeks for this important work seems excessive?”
“Building Integrated Systems Ltd registered under company number 11299155 (‘BISL’) is a company not party to these proceedings, but which the Petitioner believes the First Respondent uses as a trading vehicle for him to compete with and divert business away from the Company. The Petitioner’s said belief arises for the following reasons; the First Respondent resigned as employee of the Company on2nd April 2018 and BISL was incorporated on9th April 2018 , the sole director and shareholder of BISL (Allison Barker) is the First Respondent’s sister and she works as a primary school teacher with no knowledge or attachment to the industry of designing and building of integrated property development solutions. It is averred that Addenbrooke’s is a main client of BISL having transferred all its business from the Company to BISL, and that the First Respondent services Addenbrooke’s requirements via BISL, to the detriment of the Company and its shareholders. In addition to the work carried out for Addenbrooke’s it is averred that all other work carried on by BISL (for other clients) is identical to the services provided by the Company and that BISL in all respects directly competes with the Company to its detriment and that of the shareholders. The Frist Respondent’s conduct in this respect also amounts to unfair prejudice for which the Petitioner seeks a remedy.”
“Equally, if the order provided, as it did in In re Jermyn Street Turkish Baths Ltd. [1970] 1 W.L.R. 1194, for the purchase of the shares of the delinquent majority, it would not merely not be fair, but most unfair, that they should receive a price which involved an element of premium.”