“81. The Range Rover Transaction resulting from the exchanges set out above was, in summary, a tripartite arrangement on the following terms: (1) TCH agreed to provide Mr King with the Range Rover for 36 months; (2) KSSL agreed that TCH could retain KSSL's profit share and that TCH would be its sole supplier for car hire, leasing and fleet management for three years; (3) Mr King agreed to pay TCH rental of£100 per month. 82. It was implicit in the arrangement that TCH would be liable to make up any shortfall between the rental that it would normally have charged for the Range Rover and the income from KSSL's profit share plus the£100 per month payable by Mr King and that it would be entitled to keep any excess, in the event that the profit share plus£100 rental was more than the anticipated rental. Although it was originally suggested by TCH that KSSL could retain the excess in the third year, ultimately this does not appear to have been agreed.”
“After considering Mr King's evidence, together with the documentary evidence and the evidence of Mr Evans, I have come to the conclusion that Mr King was aware of how the Range Rover Transaction was being funded by KSSL and of the impropriety of the transaction. Mr King came across as an intelligent individual with an eye for detail. His evidence as to his belief that Mr Evans had simply managed to negotiate a "great deal" with TCH at a token level of rental was inherently implausible. The private texts exchanged between Mr King and Mr Evans in 2017 are of particular relevance to the assessment of Mr King's credibility. They provide confirmation that Mr King was aware of the funding arrangements. Mr King's attempts in his evidence to reconcile these texts with his case that he was unaware of those arrangements were unconvincing. In short, I do not regard Mr King's evidence in relation to the Range Rover Transaction as reliable or honest.”
“In these circumstances, I conclude that the Range Rover Transaction gave rise to a bribe received by Mr King. As noted above, I have reached this conclusion without hearing from TCH. My findings in relation to the bribery claim are relevant to my consideration of the claim for breaches of the general duties to which I now turn.”
“I consider that the Range Rover Transaction entailed the following breaches of duty on the part of Mr King. (1) By entering the Range Rover Transaction, which was for his own benefit and not that of KSSL but was at KSSL's expense, Mr King failed to act in good faith and in the best interests of KSSL, contrary to his duty under section 172. (2) By accepting the Range Rover from TCH, Mr King accepted a benefit in his capacity as a director of KSSL contrary to his duty under section 176. As noted above in the context of bribery, the Range Rover was a benefit to him in that TCH assumed the risk of a shortfall on the profit share and agreed exceptionally to a personal lease. It was a luxury car for which he paid a token rent. It was not used by him solely for company purposes. KSSL had no interest in his having a luxury car as opposed to a less luxurious alternative. He received that benefit in his capacity as a director of KSSL. TCH was KSSL's fleet supplier. There was a clear nexus between the granting of the benefit and the fact that he was a director of KSSL in a position to influence the business. (3) Mr King failed to avoid a situation vis a vis TCH in which he had an interest that conflicted with the interests of KSSL, contrary to his duty under section 175. (4) By failing to declare the nature and extent of his interest in the transaction, he acted contrary to his duty under section 177. There were KSSL board meetings on2 April 2015 and5 May 2015 at which he ought to have disclosed his interest but he failed to do so. (5) By receiving a bribe and failing to report his own wrong doing, Mr King acted contrary to KSSL's anti-bribery policy and in breach of his contractual duties owed under his employment contract.”
“99. Mr King alleges that when discussing his departure from the business, Mr Zeidler stated that if the parties did not reach agreement, KSSL would investigate Mr King’s mismanagement and that this would inevitably result in his dismissal. Mr King alleges that he asked, “what mismanagement?” to which Mr Zeidler replied, “we’ll find something”
“Under the terms of the Settlement Agreement KSSL agreed: (1) to make an ex gratia payment of£70,000 less PAYE deductions to Mr King; (2) to release Mr King from any claims under clause 10 of his employment contract which arose as a result of actions of which the board of KSSL or any group company had knowledge of as at the date of the Settlement Agreement; (3) to pay Gordons LLP, Mr King's legal advisers,£2,000 plus VAT; Mr King agreed to a 12 month non-compete provision in return for the payment by KSSL of£5,000 .”
“Mr Zeidler explained in his witness statement why he considered that the proposal from TCH to compensate KSSL in the sum of£65,000 , on the basis that KSSL's loss was£54,000 , was not acceptable. At the time the offer was made, KSSL did not know the full extent of the financial consequences of the arrangements between Mr Evans, Mr King and TCH. He believed that the loss suffered by KSSL was greater than the figure of£54,000 and that it comprised (i) the profit share due to KSSL totalled£40,666.47 and (ii) the payment of an additional£39,900 by KSSL to fund Mr Evans's Range Rover; and (iii) the incremental cost of the exclusivity provided to TCH, limiting KSSL's ability to negotiate improved prices on its fleet in the sum of£73,728 . He was also concerned about the tax implications of KSSL's financial assistance for the provision of the Range Rovers. The evidence of Mr Fisher and Mr Stiefel was similarly to the effect that they were concerned that TCH's offer did not cover all the losses incurred by KSSL. Mr Stiefel also considered that it was important to pursue Mr King and Mr Evans in order to demonstrate internally and externally that their behaviour would not be tolerated.”
“133. The Claim Form was issued two days later on15 August 2017 . The decision to initiate the present claim was taken by KSSL’s non-executive directors. After the claim had been filed, it was decided that Ms Shaw and Mr Zeidler would have the overall lead on the claim. 134. KSSL did not send a pre-action protocol letter to Mr King. Mr Zeidler’s evidence was that he took the view, based on his experience of Mr King’s conduct, that sending such a letter and engaging in a pre-action process would be a waste of time and money as KSSL could see no honest defence to the claim and wanted to pursue it as quickly as possible. I accept that these were genuine reasons for not sending a pre-action protocol letter and that a pre-action protocol letter would probably not have caused Mr King to react any differently to the claim to the way in which he reacted after the issue of proceedings, which was to put forward what I have concluded was a false case. That does not, however, excuse the failure to send a letter.”
“These purposes are alleged to be: (1) to enable its ultimate controlling parent company, Primekings, to obtain the shares in KSGL held by Mr King and the family trust, together with the B shares held by Mr King's parents at a gross and/or very substantial undervalue, by using these proceeding to place stress, distraction, financial and emotional pressure on Mr King whilst simultaneously pursuing charging orders and subsequently Part 8 Proceedings against him, his parents, and the trust for the sale of the King Family Shares; and/or (2) to inflict serious and gratuitous damage to Mr King's reputation, with the intention of thereby preventing him from obtaining any other employment commensurate with his experience and/or competing in future with KSSL's business, by using these proceedings to provide a platform for the purpose of publicising the allegations against Mr King herein as widely as possible.”
“233. First, the fact that in 2017 Primekings and its representatives were interested in acquiring the King Family Shares does not support the inference that the purpose of these proceedings was to enable that objective to be achieved, still less to be achieved by obtaining the shares at an undervalue. Following the collapse of the Misrepresentation Proceedings, Primekings and its representatives had the benefit of a costs order in their favour in the sum of£1.7 million with detailed assessment to follow, which they were entitled to enforce. They quite understandably proposed to satisfy that liability by obtaining a transfer of the Kings' only substantial asset apart from their homes, namely the King Family Shares. Having sought unsuccessfully to reach a settlement agreement on terms that the shares were transferred, they obtained a final charging order over the King Family Shares on3 August 2017 . By the time these proceedings were started on15 August 2017 , they were therefore in a position to bring Part 8 proceedings to obtain an order for sale of the shares. The current proceedings were not needed in order to enable Primekings to obtain the King Family Shares and did not further that objective in any way. 234. Second, whilst there is no doubt that costs spent by KSSL on these proceedings, which I understand are in the region of£2.5 million plus VAT, are grossly disproportionate to the relatively small amount at stake, this does not support the contention that the proceedings were brought for the purpose of obtaining the King Family Shares. The evidence of KSSL's witnesses, which I accept, was that when the claim was launched it was anticipated that the claim would be relatively straightforward and swift to resolve. Once the costs had increased substantially, KSSL was not prepared to discontinue and expose itself to an adverse costs order. The costs of proceedings have been significantly increased by Mr King's counterclaim. The willingness of KSSL to spend such large sums on the proceedings and the failure to accept TCH's offer of compensation indicates that these proceedings were not brought for the predominant purpose of obtaining compensation but not that they were brought for the improper purposes alleged by Mr King.”
“Mr King's case as to the supposedly improper purposes imputed to KSSL in bringing these proceedings is further undermined by the open offer to settle the proceedings contained in letters dated 9 June and23 June 2020 from KSSL's solicitors. The offer was along the same lines as the offer made to and accepted by Mr Evans, namely a payment in respect of KSSL's damages claim, a contribution to KSSL's costs and an open acceptance, with hindsight if necessary, that the transaction should have been the subject of disclosure/board approval i.e. not involving Mr King in having to acknowledge any conscious impropriety. This offer was not accepted by Mr King. In the absence of a settlement, the proceedings have been brought to a conclusion, which in itself counts heavily against a finding of an abuse as observed by Lord Wilson in Crawford v Sagicor (paragraph 220 above).”
“248. KSSL contends that its actual purposes in bringing these proceedings were to obtain compensation, to vindicate KSSL's rights as against Mr King and Mr Evans and to protect KSSL's reputation in the security industry by publicly demonstrating that KSSL would not tolerate conduct of the kind perpetrated by them. 249. I accept that those purposes played some part in KSSL's decision to bring the proceedings although, as noted above, it must have been obvious to KSSL from early on that the irrecoverable costs of the litigation would dwarf any compensation it was awarded and that if recovery of compensation was KSSL's main objective, it would have accepted the compensation offered by TCH and discontinued the proceedings. 250. It is clear to me that, aside from these purposes, the anger felt by Mr Stiefel and Mr Fisher towards Mr King, as a result of what they considered to be the unfounded allegations made against them in the Misrepresentation Proceedings, compounded by anger at what they considered to be his dishonesty and failure to accept responsibility for his actions, must have influenced KSSL's decision to bring these proceedings and also had an effect on the combative, sometimes over-combative, manner in which the proceedings have been conducted. As the authorities cited above make clear, however, motive and personal antagonism are in themselves irrelevant to the question whether proceedings have been brought for an improper purpose.”
“The conduct relied upon by Mr Newman in resisting a costs order against Mr King was (i) KSSL's failure to accept the offer of compensation of£65,000 from TCH (referred to at paragraph 127 of the Judgment) and (ii) KSSL's failure to set off the£70,000 payable to Mr King under the Settlement Agreement against its damages claim. Mr Newman submitted that KSSL's conduct in failing to pursue these alternative routes to compensation and instead pursuing Mr King through court proceedings was unreasonable and oppressive. He submitted that KSSL had made the case impossible to settle from the start by incurring hundreds of thousands of pounds in costs before the case was even mentioned to Mr King. Had KSSL pursued the alternative routes to compensation, according to Mr Newman, the claim and the counterclaim would not have happened.”
“36. I consider that Mr King's conduct was outside of the norm in the following respects. 36.1 The factual basis of his Defence that he was unaware of the payment arrangements underlying the Range Rover Transaction was untrue. His evidence in connection with the Range Rover transaction was dishonest. 36.2 There was no sound evidential basis for the counterclaim. The fact that permission was given to plead the Grainger v Hill tort does not assist Mr King. The court, having considered the evidence, has concluded that the evidence did not come close to establishing the tort. Furthermore in advancing the counterclaim, Mr King made serious allegations against KSSL and its representatives which were not made out, including an allegation of deliberate concealment of the Master Lease Agreement, an allegation of deliberately advancing a misleading case that Mr King authorised the Range Rover Transaction and an allegation that witness statements had been deliberately drafted in order to mislead. 36.3 Mr King falsely accused Mr Evans of perjuring himself and made unsubstantiated accusations that improper pressure was put on witnesses. 36.4 Mr King failed to make any realistic efforts to settle the claim and appears to have instructed his solicitors peremptorily to dismiss reasonable efforts made by KSSL to negotiate a compromise. Mr King's failure to accept the offers of settlement made by KSSL included, not only the offer in the letter of27 June 2019 , but also open offers in June 2020 referred to at paragraph 247 of the Judgment.” “37. Mr Newman submitted that the KSSL offers could never have been accepted because Mr King was impecunious. I do not accept that submission. There was no evidence before me of Mr King's financial position. It is not disputed that during the course of the proceedings Mr King received an interim payment of£1.7 million from DWF arising out of a negligence claim brought by Mr King in connection with the Misrepresentation Proceedings. Impecuniosity does not appear to have been raised by Mr King in correspondence as an obstacle to settlement with KSSL. The solicitors' correspondence in June 2020 indicates that the reason why there was no settlement at that stage was that Mr King, unlike Mr Evans, refused to acknowledge any responsibility or regret for his part in the Range Rover Transaction. KSSL's offer of9 June 2020 made clear that KSSL was prepared to discuss generous payment terms by way of extended interest-free affordable instalments, an appropriate repayment holiday and an outright suspension of payment pending a change of circumstances, subject to an affidavit of means being provided.”
“8. As to ground five, the findings on affirmation were findings of fact which were open to the judge. A claim for counter-restitution based on a counter-factual that, but for the settlement agreement, Mr King would have remained employed, is an unpleaded new case not advanced at trial. Moreover, no restitutionary claim would arise because, on the judge's findings, the entitlement to rescission arose at the date of the settlement agreement as a result of the suppression by Mr King of his own breaches of fiduciary duty. The relevant counter-factual, therefore, is not merely that the settlement agreement would not have been entered into, but also that the suppressed information would have been known to KSSL. It is clear that knowledge of that misconduct on the part of Mr King would have justified summary dismissal for gross misconduct and, on the evidence in the case, it is perfectly clear that that is the course which the directors of KSSL would have taken. 9. As to ground six, the issue of whether there was an improper collateral motive was a question of fact for the judge. The argument is that the judge ought to have found that the motive was to obtain the Kings' shares at an undervalue. However, the judge found, and he was entitled to find, that that was not a matter which was in the minds of those conducting the litigation on behalf of KSSL as any part of their purpose in bringing the claim against Mr King.”
“7.4.1 appoint and maintain AK in office unless he ceases to be a director by reason of gross misconduct, together with one other person as the Founder may from time to time direct as Founder Director of the Company and the Group (and as a member of each and any committee of the Board) and to remove any director so appointed and, upon his removal whether by the Investor or otherwise, to appoint another person to act as a Founder Director in his place; and 7.4.2 appoint a representative to attend as an observer at each and any meeting of the board [sic] and of each and any committee of the Board.”
“Each of the Shareholders undertakes to each other (as a separate covenant by each of them) to exercise all voting rights and powers of control available to him in relation to the Company to procure that for as long as the Option is capable of exercise, and for so long as AK holds shares in the Company, the Investor shall not and shall procure that no Group Company shall (without AK’s written consent): 9.1.1 take any steps or omit to take any step the consequence of which the Founders believe acting reasonably and in good faith will impair the achievement of EBITDA targets set out above; or 9.1.2 remove AK King [sic] as a director of the Company save where he is guilty of misconduct, fraud or dishonesty or is not permitted under the Articles to continue as a director of the Company.”
“40.1 If a shareholder who is, or has been, or whose permitted transferee is, or has been a consultant, a director or an employee of any group company (an Employee Shareholder) ceases to be a consultant to, or a director or employee of a group company (a Departing Employee Shareholder) and is a bad leaver, the Departing Employee Shareholder shall be regarded as giving a Deemed Transfer Notice in respect of all the shares held by him on the date on which his consultancy agreement or employment agreement is terminated or, if he is a director but not an employee, the date on which he ceases to hold office (Termination Date) and any permitted transferees, and transmittees of permitted transferees of that Departing Employee Shareholder, shall be regarded as giving a Deemed Transfer Notice in respect of all shares held by them on the same date. 40.2 In such circumstances, the Transfer Price shall be the lower of fair value (as agreed between the bad leaver and the board or, in the absence of such agreement, as calculated by an independent accountant appointed by the board) and the nominal value of the Sale Shares…. 40.6…All voting rights attached to such Departing Employee Shareholder’s Shares, if any, shall be suspended on the Termination Date (Restricted Shares). However, the holders of Restricted Shares shall have the right to receive a notice of, and to attend, all general meetings of the Company, but shall have no right to vote either in person or by proxy”
“66. The law in relation to res judicata has very recently been summarised by Lord Sumption in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited[2013] UKSC 46 ,[2013] 3 WLR 299 . The other members of the Supreme Court agreed with his summary. Having regard to what was said there and the cases cited by Lord Sumption, it is sufficient for the purposes of this appeal to state the relevant principles as follows. 67. Cause of action estoppel is a form of estoppel precluding a party from challenging the existence or non-existence of a cause of action where that has already been decided in earlier proceedings. It arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case, unless fraud or collusion is alleged such as to justify setting aside the earlier judgment, the bar is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of the cause of action. Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. 68. Issue estoppel is a form of estoppel precluding a party from disputing the decision on an issue reached in earlier proceedings even though the cause of action in the subsequent proceedings is different. It may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties or their privies to which the same issue is relevant one of the parties seeks to re-open that issue. In such a situation, and except in special circumstances where this would cause injustice, issue estoppel bars the re-opening of the same issue in the subsequent proceedings. The estoppel also applies to points which were not raised if they could with reasonable diligence and should in all the circumstances have been raised, but again subject to special circumstances where injustice would otherwise be caused. 69. Res judicata operates as a substantive rule of law. It is to be distinguished from the court's exercise of its procedural powers to control the court's processes from being abused. They are juridically very different even though there are overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. In the case of the exercise of the court's procedural powers to prevent abuse the court should take a broad, merits-based judgment taking account of the public and private interests involved and all the facts of the case, focusing on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
"Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised."
“96. It is also possible for an action against a third party to be struck out as an abuse of process if it amounts to an impermissible collateral attack on an earlier court decision. The applicable principles in such cases were summarised by Morritt V-C in Secretary of State v Bairstow[2004] Ch 1 at [38]: (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court…(c) If earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re- litigated or (ii) to permit such re-litigation would bring the administration of justice into disrepute." See also the recent reaffirmation of this approach by the Court of Appeal in Allsop v Banner Jones Limited[2021] EWCA Civ 7 . 97. One illustration of the principle is Taylor Walton v Laing [2008] PNLR 11 in which a claimant who had failed in a first claim in contract against his counterparty was not permitted to bring a second claim against his solicitor for negligence. The claim against the solicitor was predicated upon an allegation that the true agreement between the claimant and the counterparty had been on terms that had been rejected by the judge in the first case, and that the solicitor had failed to draw up a written document accurately to reflect those terms. The Court of Appeal struck out the second claim as an abuse of process on the basis that it was a collateral attack on the first judgment and brought the administration of justice into disrepute. Buxton LJ concluded, at paragraph [25], that the proper course for the claimant would have been to appeal the first judgment rather than seek in effect to have it reversed by a court of concurrent jurisdiction hearing the second claim. He also observed that if, exceptionally, a second action amounting to a collateral attack on an earlier decision could be brought, it had to be based on new evidence that entirely changed the relevant aspect of the case: see per Lord Cairns LC in Phosphate Sewage v Molleson (1879) 4 App. Cas 801 at 814. 98. As Lord Sumption explained in Virgin Atlantic v Zodiac Seats, the abuse of process doctrine can cover the same ground as issue estoppel, but may also apply in a wider set of circumstances. So, for example, it can classically apply where a party seeks to raise in a second set of proceedings against the same opponent, an issue that was not raised in the earlier proceedings, but could and should have been. This is often known as Henderson v Henderson abuse of process after the case of the same name: see (1843) 3 Hare 100. The leading modern statement of the principle is the speech of Lord Bingham in Johnson v Gore Wood[2002] 2 AC 1 at page 31, where Lord Bingham advocated that the court should take, "a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."” (a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court…(c) If earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re- litigated or (ii) to permit such re-litigation would bring the administration of justice into disrepute." "a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."”
“85. Here, the Company was the respondent in the Employment Tribunal but it is only nominally a party to the petition. The primary respondent is CJ. However, a company can of course only act through human agency, and it is CJ against whom the actual allegations were made in the Tribunal. CJ there gave evidence to rebut them, and indeed it was CJ, as the chairman and majority shareholder, who conducted the Company's case. To hold that there is no abuse because of the distinction between CJ and the Company would be, in my judgment, to adopt a formulaic approach to the application of the principle of precisely the kind proscribed by Lord Bingham. For in Johnson v Gore Wood & Co it was similarly argued that there could be no abuse since the previous action against Gore Wood & Co that was relied on had been brought not by Mr Johnson but by a company of which he was the managing director and majority shareholder. Although the House of Lords concluded that there was no abuse in that case, Mr Johnson's argument on this ground was expressly rejected: see per Lord Bingham at 32C-G (with whom Lords Goff, Cooke and Hutton agreed). 86. Applying a “broad merits-based approach”, I think that it would be oppressive to require CJ to re-litigate the very issues of whether or not, and in what circumstances, Dinesh was willing to work at the Company in the period August-October 2005 that were argued in the Tribunal. Moreover, in my judgment it would bring the administration of justice into disrepute if Dinesh were now able to ask this court to make contrary findings to those arrived at by the Employment Tribunal which heard the evidence of both Dinesh and CJ. The fact that the form of relief sought in the present proceedings and in the proceedings before the Employment Tribunal is very different is in my view irrelevant. Dinesh is fully entitled to bring his petition under the Companies Act provisions in parallel with his constructive dismissal claim and no question of cause of action estoppel arises. But that does not permit Dinesh to advance in the present proceedings what is, in my view, a collateral attack on specific findings of the Tribunal, that were reached after hearing contested evidence and that are fundamental to its decision. I should add that I have not seen anything by way of documents disclosed in the current proceedings which suggest that the Employment Tribunal would have reached a different decision on these matters if such disclosure had been made in the Tribunal proceedings.”
“Here, the issues raised in the claim against the Company and determined by the Employment Tribunal were (a) whether Dinesh was willing to work for the Company, and (b) whether CJ’s conduct of the affairs of the Company was such as to deny Dinesh the opportunity to work. The present case raises directly the manner in which the affairs of the Company have been conducted, and in particular the way in which they were conducted by CJ as regards Dinesh. The Court of Appeal in Barakot stressed that the question of identification of interest for the purpose of privity must be such as to make it just or equitable that the party to the later proceedings is barred by the determination in the earlier proceedings: per Balcombe LJ at 288f; Beldam LJ at 291e-f. Here, I consider that it is just and equitable that Dinesh should be bound by the decision on these issues in his earlier case against the Company; just as if Dinesh had succeeded before the Employment Tribunal I would have considered it just and equitable that CJ should be bound by the determination of those particular issues as against the Company. Although the Company cannot be regarded as CJ’s alter ego, not least because Dinesh retains a substantial minority interest, I think that as regards the subject-matter of the previous dispute there probably is sufficient identification of CJ with the Company for an issue estoppel to apply.”
“The issue of agency is addressed by the Arbitrator in paragraphs 14 to 17 of the Second Partial Award. I agree with his reasoning and conclusion. No further evidence has been identified which would throw doubt on that conclusion. On the contrary, as explained above, the Binding Authority confirms that the position was as he understood it to be. Popplewell J considered that the Arbitrator's conclusion on this issue was not open to serious doubt. I agree. If it was necessary, I would accordingly conclude that there is no reasonable prospect of A&A establishing any of its alleged causes of action against Zurich put forward on the basis that Towergate was acting as Zurich's agent.”
“When determining a summary judgment application, a judge is not obliged to give declarations on related or sub-issues if not granting the application even if he/she is of the view that a party does not have a realistic prospect of success on that issue, Executive Authority for Air Cargo and Special Flights v Prime Education Ltd[2021] EWHC 206 (QB) (Saini J). Whether the judge decides to make such a declaration on the sub-issue or simply leaves the issue for the trial judge will be a fact-specific case management decision to be undertaken following assessment as an exercise of discretion in accordance with the overriding objective.”
"As the judge rightly recognised the foundation on which the rule [in Hollington v Hewthorn] must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ('the trial judge'), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard."
“70. The first limb of the order sought seeks an order that evidence of findings of fact made in the Kleiman Litigation be not admissible in these proceedings. This is the subject of the rule in Hollington v Hewthorn. If evidence is placed before the court of what a judge in other civil proceedings between different parties found as a fact, it is inadmissible to prove the same fact in the present proceedings. If, however, that evidence is put before the court, not to prove the same fact, but instead (say) for the purpose of proving that the judge in the other proceedings actually said those words, then it will be admissible for that purpose. Accordingly, I could not make the order sought under this limb in any event: it is too broadly worded. 71. But, even in the narrower form of order, that the judicial findings from the US litigation be not admissible as evidence of the facts so found, I do not consider that I should make the order. The rule in Hollington v Hewthorn is clear, and it will be the duty of the trial judge to decide whether it applies to the particular evidence tendered. It would be unusual for another judge, long before the trial, and with less information than the trial judge will have, to bind the hands of the trial judge in this respect. If this limb of the order is made now, what is to prevent other orders being sought at this stage to prevent admissibility of evidence at trial which infringes other of the rules of evidence? These are matters best left to the trial judge.”
“However, Crossmore seems to have brought it to the profession's attention that on sec. 459 petitions, in particular, where a company is a necessary respondent, the company may be affected by the petition in two particular ways: it may have to give discovery of documents on what is sometimes called a pure sec. 459 petition, that is a petition simply seeking a buy-out by one section of the members of the other section of the members or some of them; further, it may be that the company itself might be ordered to buy back the shares which are in issue, Such an order plainly involves the company's interest and requires its representations for two reasons; first, the interests of creditors may be affected and, secondly, the interests of members as a whole may be affected in that the company should have sufficient moneys to carry on its business in a proper way after it has spent moneys on buying in shares. Apart from those interests, the company has no business whatever to be involved in the sec. 459 petition on the principle that, as was said in Pickering v Stephenson, the company's moneys should not be expended on disputes between shareholders.”
“It seems to me that to restrain the company from being represented during delivery the judgment or if, following the modern practice, the judgment was released to counsel the evening before for consideration of consequential matters the next morning at the time of handing down. at the time of release to counsel. is not a sensible restraint. The company may need to have counsel hear the judgment, or receive the judgment and consider it overnight, so that he can advise the board as to what representations on behalf of the company need to be made to the court before the order is considered. There may well be a need for the interest of the company as a whole to be considered and the board advised about representations to the court about consequential orders. For that reason I am not prepared to restrain the company until after judgment, as the application is framed. It seems to me that the right thing is to restrain the second, fourth and eighth respondents on these admitted misfeasances by them, although the amount wrongly spent is unquantified, from causing or procuring the company to be represented on the hearing of the petition or to be otherwise involved in and about the petition save for any necessary applications under sec. 127. They should further be restrained from causing the company to incur costs in relation to this petition save costs reasonably and properly expended on giving discovery, or on making any necessary application, but that those restraints should terminate on conclusion of the argument on the petition rather than until after judgment. That, however, is a merely semantic difference. I do not think it goes in the least to the principle of the matter.”
“The Trust, James King and Susan King were not parties to those proceedings [the Bribery Claim] or that decision, and they are not bound by it. That means that the issues at trial are at large regarding all parties. In any event, the issue in these proceedings is fundamentally different to the issue in the Bribery Claim – these proceedings concern whether the affairs of the company have been conducted in a manner which was unfairly prejudicial to members generally including our clients. Our clients say that the expenditure of huge and disproportionate amounts of company money to pursue a modest claim against Anthony King amounts to commercial mismanagement and was borne out of a personal animus that cannot be justified.”
“1. For the avoidance of doubt the pleadings remain the definitive guide to the parties’ respective cases. This document has been assembled to assist the Court with case management. 7. Did the Respondents put pressure on the Petitioners aimed at pressuring them to give up their shares in KSGL. In particular…..7.3 Did they try to create pressure by bringing a bribery claim against Anthony King where the costs incurred including the irrecoverable costs were hugely disproportionate to the amounts in issue? Should such a claim have been avoided because an offer from TCH had been accepted, alternatively should have been accepted? 11. Were the Petitioners unfairly excluded via: 11.1 A failure to provide information such as management accounts? 11.2 Failing to allow a founder director to be appointed who could report to the Kings? 11.3 Failing to allow an observer to be appointed who could report to the Kings?”
“In the present case, Anthony King did seek (unsuccessfully) to appeal and no basis has been put forward by or on behalf of James and/or Susan King as to why any different conclusion ought to be reached on the same issues in the present proceedings or as to why they should be permitted to relitigate such claims which concern only their son’s relationship with KSSL. James and Susan King resigned as directors of KSSL on9 November 2011 and26 March 2010 respectively and resigned as directors of the Company on20 December 2013 . As neither James nor Susan King have had any involvement in the management of the Company or KSSL since then, they would have no relevant evidence to give in relation to the matters determined in the Bribery Claim.”
“284. It follows then that were this a case where there was identity of parties I would conclude that there was a clear case of issue estoppel as regards the costs allegations, insofar as they put the amount of the costs liability in the Misrepresentation Claim in issue. 285. The question is whether a different outcome results because of lack of identity of parties. On this I conclude without any difficulty at all, that the same outcome must result. The attempt to run these points now is a blatant attempt to go behind both the decision on the detailed assessment and the decision of Master Whalan not to stay that detailed assessment; a decision which was taken expressly so that Primekings had finality on the indemnity costs order which it had obtained (by consent) in the Misrepresentation Claim. 286. It cannot be said that anything has changed between the time when those decisions were made and now: the costs issues are no different now to what they were then. This is particularly tellingly illustrated by the fact that the Points of Dispute were served on the same day as the Particulars of Claim in this action.”
“If Primekings felt confident that Judge Lenon’s decision was correct on the evidence, then it would be hugely in their interests to have the paragraphs in question remain in the pleading. Bearing that in mind, there is reason to think that the application is in fact being brought (at huge cost) because Primekings knows that at the trial the evidence is likely to show that the Chief Financial Officer and the Chief Executive Officer were not involved in the decision to issue the bribery claim without writing a single letter that decision being taken outside of the KSSL Executive Board of Directors, and that is likely to lead the Trial Judge to find that there was Unfair Prejudice. That that is what happened is consistent with the approach of Primekings as shown by the email showing Primekings taking steps in 2016 to ‘neutralise’ the KSSL independent board of directors.”
“We confirm that our clients consent to a joinder of KSSL to the proceedings. Our clients accept that KSGL and KSSL need to be parties to the Petition in order to be bound by any decision made by the Court and in order to give any appropriate disclosure. However, as with KSGL, KSSL intends to take a neutral position in this dispute. For that reason, none of the views expressed in this letter (and our other letters) constitute the views or representations of KSGL or KSSL.”
“The Respondents (save for the Company and KSSL) shall file and serve Points of Defence by 4.00 pm on22 March 2019 .”
“The Court is respectfully invited to delete the words “and that these allegations must go to trial”