“Once the meetings have approved the scheme, the sanction of the court must be sought. The sanction of the court is not a mere formality. Although the court has an unfettered discretion as to whether or not to sanction the scheme, it is likely to do so, as long as: (1) the provisions of the statute have been complied with; (2) the class was fairly represented by those who attended the meeting and that the statutory majority are acting bona fide and are not coercing the minority in order to promote interests adverse to those of the class whom they purport to represent; and (3) the arrangement is such as an intelligent and honest man, a member of the class concerned and acting in respect of his interest might reasonably approve… The court does not sit merely to see that the majority are acting bona fide and thereupon to register the decision of the meeting. The court will decline to sanction the scheme if the class has not been properly convened and properly consulted, or the meeting has not considered the matter with a view to the interests of the class which it is empowered to bind, or some blot is found in the scheme which had been unobserved when it had been approved by members or creditors, but will otherwise be slow to differ from the meeting.”
“[20] The classic formulation of the principles which guide the court in considering whether to sanction a scheme was set out by Plowman J in Re National Bank Ltd[1966] 1 WLR 819 at 829 by reference to a passage in Buckley on the Companies Acts (13th edn, 1957) p 409, which has been approved and applied by the courts on many subsequent occasions… [21] This formulation in particular recognises and balances two important factors. First, in deciding to sanction a scheme under s 425, which has the effect of binding members or creditors who have voted against the scheme or abstained as well as those who voted in its favour, the court must be satisfied that it is a fair scheme. It must be a scheme that 'an intelligent and honest man, a member of the class concerned and acting in respect of his interest, might reasonably approve'. That test also makes clear that the scheme proposed need not be the only fair scheme or even, in the court's view, the best scheme. Necessarily there may be reasonable differences of view on these issues. [22] The second factor recognised by the above-cited passage is that in commercial matters members or creditors are much better judges of their own interests than the courts. Subject to the qualifications set out in the second paragraph, the court 'will be slow to differ from the meeting'.”
“It is also right to record that the court does not act as a rubber stamp simply to pass without question the view of the majority but, equally, if the four matters I have referred to are all demonstrated, the Court should show reluctance to differ from the views of the majority, and should certainly be slow to differ from the majority, on matters such as what an intelligent, honest person might reasonably think.”
“While members holding over half the issued shares voted in favour of the scheme, the turnout by number was 14.8%, leaving 9,773 members who did not vote. The court is concerned to see that the class to be bound by the scheme was fairly represented at the meeting. Depending on the circumstances, a low turn-out in terms of value or number may be a matter of concern. It would certainly be a matter of concern if there were cogent evidence to the effect that a substantial number of members were opposed to the scheme but had not voted, particularly if their opportunity of doing so had been curtailed in some way. But … a failure to vote may indicate nothing more than indifference or a belief that other members would vote through the scheme.”
“There has been speculation (and it can only be speculation) as to why people do not vote. I will not attempt an exhaustive list of the reasons why people do not vote; there are some obvious explanations. One is that, although the documents are served in accordance with the legal requirements, they do not in fact come to the attention of the shareholder. Another is that the shareholder receives a very substantial bundle of documents and does not feel ready and able to deal with it, and so does not deal with it within the time that is set. Other shareholders might feel able to deal with the matter, but in the end have no very pronounced preference and so they leave the decision to large shareholders in a company who it might be thought will have a very good commercial feel as to the appropriate decision. So such a shareholder leaving it to others to form a majority is not to be equated in any sense with an opponent of the scheme.”