“A person may not, without the permission of the court – (a) make an application against a child or protected party before proceedings have started; or (b) take any step in proceedings except – (i) issuing and serving a claim form; or (ii) applying for the appointment of a litigation friend under rule 21.6, until the child or protected party has a litigation friend.”
“Any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise.”
“(1) A member of a company may apply to the court by petition for an order under this Part on the ground — (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.”
“(a) regulate the conduct of the company’s affairs in the future; … (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. So 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 well-known 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.”
“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.”
“Once unfair prejudice is established, the court is given a wide discretion as to the relief which should be granted. Although s.461(1) speaks in terms of relief being granted ‘in respect of the matters complained of’, the court has to look at all the relevant circumstances in deciding what kind of order it is fair to make. It is not limited merely to reversing or putting right the immediate conduct which has justified the making of the order. In Re Bird Precision Bellows[1986] Ch. 658 , Oliver LJ described the appropriate remedy as one which would ‘put right and cure for the future the unfair prejudice which the petitioner has suffered at the hands of the other shareholders of the company.’ The prospective nature of the jurisdiction is reflected in the fact that the court must assess the appropriateness of any particular remedy as at the date of the hearing and not at the date of presentation of the petition; and may even take into account conduct which has occurred between those two dates. The court is entitled to look at the reality and practicalities of the overall situation, past, present and future.”
“[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.’ That is, as Nourse J said, subject to the overriding requirement that a valuation should be fair on the facts of the particular case. [61] The general trend of authority over the last 15 years appears to us to support that as the starting point, while recognising that there are many cases in which fairness (to one side or the other) requires the court to take another date. It would be wrong to try to enumerate all those cases but some of them can be illustrated by the authorities already referred to: (i) Where a company has been deprived of its business, an early valuation date (and compensating adjustments) may be required in fairness to the claimant (Meyer). (ii) Where a company has been reconstructed or its business has changed significantly, so that it has a new economic identity, an early valuation date may be required in fairness to one or both parties (OC Transport, and to a lesser degree London School of Electronics). But an improper alteration in the issued share capital, unaccompanied by any change in the business, will not necessarily have that outcome (DR Chemicals). (iii) Where a minority shareholder has a petition on foot and there is a general fall in the market, the court may in fairness to the claimant have the shares valued at an early date, especially if it strongly disapproves of the majority shareholder’s prejudicial conduct (Cumana). (iv) But a claimant is not entitled to what the deputy judge called a one-way bet, and the court will not direct an early valuation date simply to give the claimant the most advantageous exit from the company, especially where severe prejudice has not been made out (Elgindata). (v) All these points may be heavily influenced by the parties’ conduct in making and accepting or rejecting offers either before or during the course of the proceedings (O’Neill v Phillips).”
“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.”
“6. The evidence of the family witnesses mainly addressed the informal agreements and understandings which it was alleged had been made concerning the disputed properties and chattels. Taking into account the inevitable fallibility of the witnesses in recalling past events, particularly events which took place many years ago, the motives of the witnesses in giving evidence concerning matters in which they had a direct financial interest, their ingrained sense of what they and other family members are entitled to and their strong personal feelings towards the other family members, I came to the conclusion that I should treat the evidence of the family witnesses with considerable caution. As noted by Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd’s Rep 1 , 57: ‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.’”
“3.0 If any of the Shareholders wishes to sell, transfer or otherwise dispose of any or all of his/her Shares (such party being called the ‘Seller’), the other Shareholders (‘the Offerees’) shall have a prior right to buy such Shares (the ‘Offered Shares’) and the following shall apply (note that in the event that a Shareholder wishes to buy shares from other Shareholders, that Shareholder may solicit offers from potential Sellers in accordance herewith)”
“Except when precluded or otherwise prohibited by the terms of any debt financing and to the extent permitted by law, the net profit of the Company available for distribution, after making such provisions and transfers to reserves as shall be required in the opinion of the Board to meet expenses or anticipated expenses, shall be distributed annually (unless otherwise agreed), firstly by way of repayment of Loans on a pro-rata basis, and secondly by way of dividend.”
“10.1 If the Director shall at any time be incapacitated by illness or accident from performing his duties hereunder then he shall at the earliest possible opportunity on the first day of absence inform the Managing Director of such illness or accident and of the expected date of his return to work. The Director must inform the Managing Director as soon as possible of any change in the date of his anticipated return to work. 10.2 In the case of absence of up to and including seven consecutive days a self-certification form must be completed and sent to the Managing Director without delay. For periods of absence exceeding seven days, one or more doctor’s certificates must be forwarded to the Managing Director as soon as possible following the seventh day of absence and at intervals of no more than seven days during the period of sickness absence. 10.3 The Director may be required at any time to undergo a medical examination by a medical practitioner nominated by the Company whether or not he is suffering or has suffered any period of sickness or incapacity for work. The cost of any the examination will be met by the Company and the Director shall co-operate in the disclosure of all results and reports to the Company.”
“MS raised question on what work NS now did in the Warehouse and Sales role. Emphasised the need for Sales Pipeline to be passed onto JW when NS is concentrating on Sales. MS wanted NS to confirm when he was fully back on Sales.”
“To add more stress to me, Mark employed a full time so-called marketing consultant paid£23k per year by STA. This appears to be an error and STL is intended. I agreed initially but it didn’t take long before I realised the marketing consultant was inept and voiced this to Mark. I felt we didn’t need a full time marketing consultant, and due to his ineptitude I even had to remove his access to STA’s Facebook page as he was doing more harm than good.” … The pressure really began to take its toll later that year when Mark called me on the phone and said he and Jeremy wanted to remove Neil as a director of Simmonds Transport, and asked if I would also relinquish my directorship to ‘soften the blow’ for Neil. Chris Goode, the company solicitor had regular meetings with Neil to improve sales, although at the time the business seemed to be performing well and was profitable.”
“In fact Chris Goode was put with Neil for a while to help him with his sales to focus and improve what he was doing for the company. This was agreed by all us in Board Meeting.”
“I and Chris did have meetings and regular chats to discuss sales, how I went about finding sales and what his view was from his experience from working with other company’s [sic]”
“During a board meeting it was discussed that the sales process lacked strategy and direction. Chris Goode agreed to sit with Neil within his remit of Non Exec and Business Advisor. I was of the opinion that we paid for Chris so might as well use him and his time to assist in an area where we were deemed to need tightening up on process and targets. This was discussed fully within a board meeting and agreed by all and especially Neil.”
“I have to state that within board meetings AS did not raise any points regarding this and also did not raise any concerns in any way. AS did not contribute fully within board meetings and did what I would call the bare minimum before darting out of the room citing being too busy. In my opinion he was out of his depth and not able to contribute with logical and considered thought. If the board were to be reduced it would have been on the advice of our non-exec and lawyer following structured management meetings to determine from each director what their role was within the business and their thoughts for a five year plan and the future. To state he even has a relationship with Neil is laughable. Also, I would love to know when I have ever made a decision where the best interest of the company and the fellow directors was not put first!!!”
“Regarding the review he said if I had nothing to say, I should just leave it blank and not to worry about it. Mark approached me shortly after this and again talked about removing me as a director. I asked him if he could give me a guarantee that if I agreed, I would be reinstated as a director within 3 months, to which he shrugged and, in a very non-committed manner, said not to worry, and he would have to see about that. His manner really concerned me.”
“A discussion did take place but it was to see what his feelings would be if the company needed to make changes to the board out of our review. This is a process many companies go through at some point in their progression. It did not constitute him assuming he would be removed and he is still a director and involved in everything within the businesses.”
“He does not handle change or the thought of change, when you met with him did you say what do you want to do?? Do you want to continue to work at STA/ST? Have you had enough?? Tell me what you are thinking and would like to do?”
“I do believe however that Andrew was possibly more threatened by the management review than I was. I believe that Mark has always protected Andrew specifically in his role as a director of the company. Andrew is and always was a very good mechanic but his particular aggressive management style was not in my opinion suited to his role as a director or to the management of other people.”
“It pains me to say but I feel deeply hurt and angry about the way you and Jez with Chris’ involvement are trying to remove me from the board of directors using Neil’s removal as an excuse. It’s clear you have your own agendas in wanting to reduce the number on the board which will ultimately give you more decision making power. The way you are going about it is underhand using this company re-organisation exercise as a smokescreen to get rid of me. It is particularly upsetting for me not only as a fellow director but more importantly as my closest brother whom I trusted would always have my best interests at heart. As this is not the case I am offering you a solution. I will not relinquish my directorship as this will put my shareholding liabilities at significant risk going forward. I no longer have trust in you to run the company ethically and honestly, and having had access to the accounts recently, some very troubling facts have come to light which I believe put me and the business at risk. I am requesting unofficially at this stage that you or the company consider buying my 25% shareholding at the market rate, according to the latest valuation. This way, you will have less board members and more personal control. I will have no risk and will not be obliged to make my concerns to the board, which will have consequences for you, Jez and Chris. I asked Chris to see my original signed shareholders agreement before Christmas which has not been forthcoming. Also I am awaiting on accounts information from Mark Jones who also seems to be obstructive. You don’t need me to tell you mark that as a director it is my right and my duty to have access to all financial records at any time.”
“Morning Boys, Hope you’re both ok. Sorry I’ve not been in touch as I have had a real bad couple of weeks thinking I’m going mad and worried about having a heart attack as my heart has been continually racing and lack of sleep which is still the case. I’m currently on 12 tablets a day for my chest as this has been very bad, this morning is the best my chest has felt in 4 months so hopefully the tablets are starting to work. Having to admit to myself that I am completely suffering from bad stress also was very difficult for me and broke me in front of my wife but was possibly the point I needed to reach. I physically look ok but underneath I am broken at the moment and unsure how long it will take. I feel like I have let everyone down and this is the biggest thing that bothers me. Once my chest is sorted the doctors are going to send me for psychological therapy. Even writing this has made me anxious. I will keep in touch and let you know my progress. Cheers.”
“Andy, I have called a couple of times but couldn’t get through. Your health is the most important thing at the moment and all other things are irrelevant. You have not let anyone one down so try not to think about that if you can. Reading this has brought tears to my eyes as I feel I have let you down. As you say we would not have seen this. It’s good to talk and get things of you chest, I my self have learnt a lot over the years look after yourself” look after yourself”
“In around June 2018 I know that Mark had arranged for us all to play golf at the Belfry. This was going to be a day away from work to allow us all to let off a bit of steam. This was when I first found out via Andrew’s communications with Mark that he was not feeling too well and that he had issues with blood pressure and possible asthma. I note that he indicated that he did not want to be contacted. We were obviously concerned about his ill health and I thought nothing more of it on the basis that he would take some time off work and come back. I had no real communications with Andrew.”
“The Respondents will state that it was not until5 November 2018 that Andrew submitted sick notes confirming he had been signed off as medically unfit due to work related stress. Up until this point the Respondents were unaware of the medically diagnosed reasons for Andrew’s absence. It is wholly denied that any steps have been taken by the Respondents to restrict Andrew’s involvement as alleged or at all.”
“We all know that ST has supported the other businesses in one way or another. If he had concentrated on his job at STA and not worried about all the other businesses he was part of he would not be stressed.”
“Thanks for the email Drew. It sounds as though you are in a pretty dark place pal. Please don’t say things like you have let us down because you have not in any way. Its an illness mate and needs to be treated that way. Breaking down in front of Gayle was a good thing. Might not feel like it but she needed to see what was going on and its easy to cover things up and pretend nothing is wrong and all is ok but its clearly not. Please go and see someone and talk about things. They are a great help and you will feel the difference immediately. Take things easy Andy and if you need anything you just have to call………..”
“Doctor has put me on sick for two weeks to start with no contact about work. Blood pressure above normal and scared me with possible heart attack if I’m not careful with my anxiety etc” but nowhere is there a suggestion of a plot to oust him or work being the cause of his stress and anxiety – there are exchanges about golf and general friendly banter. Again, on3rd July 2018 he had texted Mark in response to a question as to how he had got on at his doctor’s appointment. Andrew said that he was on steroid tablets to try an sort out issues with his chest and that his blood pressure was a bit high. He said: “He’s put me off for a month now. Then talk about counselling”
“Cheers for coming over. Good to see you bro!”
“Good to see you today. I’m sure in time we’ll get back to being normal. Decide what you want to do, and we can sort it out either way. I miss you not being around.”
“Further to our meeting on 04.09.18, I feel my position within the Company is becoming untenable due to the actions of my fellow directors and shareholders. I reserve my full rights to raise a grievance and to pursue appropriate action in respect of my position as shareholder and director of the Company at this time. However, with a view to resolving matters in an amicable manner, I would be prepared to exit the Company for the sum of£800,000 plus repayment of my director’s loan of£25,000 . Please come back to me on the above within the next 7 days.”
“I’ve left a voicemail, can you call me?” and then: “Give me five minutes to recover from what you’ve said, and I’ll call you back.”
“Thank you for your email. I am also keen to resolve matters as amicably and in as timely a manner as possible, particularly given the impact this has had on my personal health. On that basis, I would be prepared to exit both companies on the following terms:- The sum of£800,000 from Simmonds Transport Limited and£200,000 from STA Vehicle Centres Limited, in one payment plus repayment of my director’s loan of£25,000 . I am unable to attend the board meeting on 27 September for health reasons. Please send me a copy of the agenda and the subsequent minutes. Please also send me the minutes of the last meeting.”
“Andrew, Please accept my apologies for not replying sooner to your last email. Unfortunately due to workload and the time of year my time has been taken up with both STA and Simmonds Transport but this in no way excuses the tardy response. With regard to the most recent Board Meeting. You are indeed correct and this was postponed as communicated to all including you on September 23rd 2018. It was deemed prudent to postpone the meeting and I will advise you of the new date when we have set this which will be a decision taken next week. I will have full information for you within 10 days of today,19th October 2018 , and will issue you with information and full board minutes from the last meeting. I will also confirm the date of the next board meeting. I hope this is all satisfactory for you Best regards Mark”
“Dear Andrew, I apologies [sic] for the delay in responding to your email of21st September 2018 . As indicated, your email has come as somewhat of a shock to both myself and your fellow Directors/Shareholders. As you are aware, we had previously agreed that you would take some leave, on a purely goodwill basis, to allow you a period of rest and recuperation from work. At no stage during that period have you indicated that you were ill or have produced any medical evidence to support your ongoing absence from the business. As such, I am somewhat surprised to hear you suggest that you have a grievance against the company. Obviously this is very concerning and clearly does not reflect our historical relationship or management style within the company. In these circumstances, I believe I have no alternative but to act in relationship to your notification of the grievance. To that end, the company will write to you separately to invite you an investigatory meeting, to enable you to provide some details of the alleged grievance so that it can be fully investigated and processed. I would consider that it would be useful if, at the meeting, your current situation in relation to your ongoing absence could be discussed, together with your return to work. In relation to your suggested sale price, in respect of your shares in both Simmonds Transport and STA, neither I nor the other Directors/Shareholders are in a position to agree to the purchase of your shares at those levels. Do you have any supporting evidence in relation to the valuation? If so, are you prepared to share it? If not, I will have no option to but obtain an Accountants valuation of the Company. However, I would point out that I believe the current value that you have placed upon your shares, significantly overvalue both companies, and do not represent a fair value for your shares. In any event, I would like to assure you that, if at all possible, and after the receipt of professional advice we, the Directors and Shareholders of both companies, will endeavour to work with you to negotiate a fair value for the purchase of your shares, if indeed, that is what you want to achieve.”
“For God’s sake, he’s been out living it up, going on various holidays, including skiing, which can’t be good for a very bad chest. Also, having bad chest pains, skiing will not help stress”
“In June it had been understood by the company that you wished to take a period of voluntary absence from the company to allow you a period of rest. On a goodwill basis this was agreed to by the company and at the time it was envisaged this would be a short-term absence only. Whilst I appreciate when first taking up the period of leave you kept in touch by text messages, specifically sent to me, these text messages became less frequent and recently contact with you has proven to be difficult. The FFWN’s show that you first visited your GP on19 June 2018 and the company wishes to understand why 5 months has passed without it being notified of the FFWN’s. We invite you to respond on this. For the avoidance of any doubt I wish to emphasise that it is the wish of the company to support you in any way that it can, but it can only do so if you keep the director’s fully informed of the reasons for your absence and to provide to us with details of the grievance.”
“To date you have received full pay during your absence as the company was operating on the understanding that you were taking time out for the purpose of rest and recuperation. It was envisaged that this break from work would be for a short period of time only. Having heard nothing from you regarding a date for your return we were surprised to hear that you wished to raise a grievance. We have attempted to understand and resolve your grievance by invoking the company grievance procedure and arranging a grievance investigation meeting for13 November 2018 . You did not attend that meeting for the reasons stated in your email to me of 5 November.”
“until we better understand the reason for your ongoing absence, be that by way of a medical report and/or details of your grievance”
“Please be assured we are here to help and to understand what you need to assist you with your health issues, and to fully investigate and conclude your grievance. We cannot do this without your help. Similarly we cannot allow the situation where we have a valued director and member of the senior management team on long-term absence, without any explanation and importantly a resolution for remedying this, having been put in place.”
“insufficient evidence to substantiate Andrew’s grievance, most of which appears to be founded on suspicion plus a perceived lack of information and transparency in how the Company has operated. This does not support a claim of misappropriation, undermining or detrimental treatment. However, it does indicate a lack of transparency and governance with regard to some business-related decisions which affect the interest of all directors. Where business interests are taken outside of the immediate scope of the Company’s current trading interests, it is recommended that such meetings are fully documented, and a clear audit trail is established for the avoidance of doubt. There is no evidence to support Andrew’s claim that the Company has sought to exacerbate his ill-health and that its actions, once Andrew had requested a settlement and the pursued a formal grievance, were inappropriate, disproportionate or seeking to impose detrimental treatment upon him as a result of his ill-health. There is no evidence that the Company’s actions have been prejudicial to Andrew’s interests as a shareholder either as there has been no cessation of pay, dividends and associated benefits. The return of the pick-up is deemed as a reasonable request as this was not Andrew’s own company car. The request for clarity over the status of his continued absence from the business is also seen as reasonable and although Andrew felt the Company was well aware of the reasons for his absence and that no one had asked him for sick notes, he still had a duty to accurately certify his absence.”
“Could you authorise everyone’s RDS password apart from mine at STA to be changed please at 11am Monday morning. I would like a message to go out to all users to say there has been a security breach and new passwords will be sent. I have a security issue and want to lock it down. If all the new passwords can be emailed to Gareth Phillips and myself that would be great. Gareth Phillips is the only one who will be authorised to talk to you to keep the system running in my absence. One thing to be aware of is if you get a call from Andrew Simmonds or Colin Griffiths you must not allow passwords to be given to either of them. … Also the scanner RDS I would like google chrome and explorer locked so they cannot be used or any external websites just allow for scanning. Can you also lock down the pc that the scanner runs from the same with google and explorer. You may need Gareth’s help to do that.”
“Notwithstanding this you are of course absent from work suffering from work related stress. Due to your absence and more particularly the nature of your health condition, you are not currently carrying out any work for the Company, neither does the Company expect you to do so. Indeed you must continue to take the time during your absence to rest and recuperate. As such and in order to protect your own health, the Company shall not provide you with the access that you have requested. This is both reasonable and necessary given the nature of your health condition. As you are not obliged to carry out any work you have no need to have any access to the STA server during this time. On a final note with respect to any information you may be entitled to as a Director, if any such information is due to be provided, you will of course receive such information by way of correspondence.”
“I write further to my letter to you dated30th August 2019 and note that I have not received a response. You will recall that I confirmed the Company’s decision to refer you for an Occupational Health assessment and requested that you sign the consent form for the referral. You were reminded in the correspondence of your contractual obligation to submit yourself to a medical examination by someone appointed by the Company and we have advised you who we intend to instruct in that respect. As we have not received a response from you today we will require you to provide your consent by no later than 5.00 pm on17th September 2019 . Given your contractual obligation to submit to the examination and given the length of your absence, if you refuse to give your consent, fail to respond to our correspondence or fail to take reasonable steps to assist the Company in relation to its enquiries concerning your health condition then the Company may have no alternative than to make decisions about your employment and the Company’s options in relation to your ongoing absence without the benefit of medical opinion and without further input from you. As such we would strongly urge that you comply with your contractual duties and assist the Company with its enquiries.”
“I did talk to the employee about how his current mental health is. I did undertake a screening questionnaire for anxiety and depression. This employee’s screening questionnaire did not show evidence of him having anxiety and depression. This employee is not on medication for his mental health. This employee is not currently having talking therapies for his mental health. The only situation in which this employee informs me he is currently having mental health symptoms is in relation to what he describes as conflict with individuals in his company. This employee informs me that he is well in terms of his mental health at other times. The other medical problem that I understand that this employee has is asthma for which he is on 2 different sorts of inhalers. I understand this employee’s asthma is currently well controlled.”
“I do not believe that Andrew was excluded from the business. I note he refers specifically to the Codex transactions. I was aware of the idea as it had been floated prior to a board meeting. After the principal business of the board meeting had concluded we had a further chat. Mark Jones had left the meeting but he was called back to confirm how we could fund the purchase. Andrew was there throughout and didn’t say anything and didn’t object. Despite the fact that Andrew suggests that he was unaware of the transaction it must be pointed out that Codex was set up in Pemberton House and some security shutters had to be provided, It was Andrew who ordered all of those for that building. He clearly had opportunity after opportunity to raise questions in relation to Codex and the suggestion that he was somehow mislead is simply not correct.”
“This was a potential opportunity presented to myself following a chance encounter with Mark Taylor-Wozencroft. Effectively, we, the four shareholders, would take over Codex, retain Mark Taylor-Wozencroft who would undertake the daily work allowing us to reap the rewards by way of profit. Codex was a print business and whilst it did have some ongoing print work I was confident that we could provide it with sufficient print business to make it profitable. Other than our initial outlay Codex would require minimal management input from us. The plan was the four of us would receive a yearly dividend going forward. Unfortunately after incurring initial costs on set up Mark Taylor-Wozencroft became seriously ill.”
“In relation to the board meetings which I did attend Andrew’s contribution was generally fairly limited. After he provided his STA fleet report he made very little contribution. I note he has referred to various issues as evidence of his supposed exclusion from the business. One of those relates to the Codex transactions. I recall that discussions and agreement took place at the end of a board meeting although I did not sit in on the discussion. The formal business of the board meeting had concluded and I left the meeting. I recall at some point being asked to discuss how the potential deal could be funded. I recall advising that we could do it by way of an intercompany loan. Personally, I did not think it was a particularly good idea, and stated so, but I made it clear that it was up to the other directors and shareholders as, in all reality, it was ultimately their money. As I recall there was a general agreement that it should proceed with Mark and Jeremy being scheduled as the shareholders.”
“The below is delayed due to my time on other parts of the business’s [sic] and setting up Codex on a short timescale. In red below are the new start dates for this.”
“Update on Woody trading. Very busy at the moment with increased business. Accounts to be tied up shortly. STA tie up with Renault. New night shift and new Trainee fitters. General points made on the shortage of skilled employees for Transport and STA. More details on STA when AS getting back off holiday. MS reported that he and CG to progress new lease and Rent review with Andrew Dixon next week. Print Operation set up going OK after some initial problems with the move; but more direction into the operation will be given shortly, by MS and JW.”
“That same afternoon, after the meeting and after Mark S had stated Codex had stopped trading, I was surprised to receive a text from him, with a photograph of a cheque for£36,000 . It was made out to Codex by a firm of funeral directors. No explanation was given and I wondered why on earth he had sent it. I didn’t respond, as I didn’t really know what to say.”
“The only outstanding thing i have to do is to pay the guy who made all the bars and fitted them to the windows and doors. This came to$2,600 I will sort with MJ next week and then we are all good with the office block as it is now secure. I have plans for the new offices to go through and agree before Christmas. If we do need any stationary [sic] printing Simon Williams has said for us to speak to him when we want something doing. Any questions call me.”
“JW confirmed the room at Pemberton house had been cleared and all training facilities removed. The premises had been used for external training and CPC courses however with the impending notice to be given to the landlord, JW confirmed the room had been cleared and the new room at High Ercall was complete and the CPC training had started there. MS confirmed he will now start the process with the landlord and estate agent.”
“MJ what we don’t want to see is them figures being down on budget and having a loss which we have not had for many years. If we don’t hit those targets one thing we may have to consider is hold our dividends so we don’t get in a position like we did a few years ago. So to retain the cash within the business as we have 3 big negative months, we have fuel price problems and we are not sure what Brexit will bring either. MJ said we just need to bear this financial position in mind as we may need to halt dividends.”
“You are clearly trying to manufacture a position to avoid making payments to our client of his salary (which is paid by way of basic salary and dividend).”
“Decembers figures are were not good and down on what we had budgeted, this needs to be discussed. January figures are still not complete but looks like they will be worse as we have already budgeted for a£87,497 loss anyway. As per our discussion in the last Board Meeting we may need to be prudent and take action if our performance does not improve in the form of nonpayment for directors for the period to the end of the financial year. Customers are now being affected by the lack of Brexit planning due to the government not reaching a deal at this point.”
“As responsible Directors, we want to rectify things sooner rather than later, and all options including Directors remuneration needs to be looked at. The directors need to set an example to the rest of the business and although it’s a harsh decision to make, it’s prudent to do this as it sets a precedent to the rest of the business and shows confidence to all staff that we are committed in full to turning the performance around and quickly rectifying the problems. JW confirmed the room at Pemberton house had been cleared and all training facilities removed. The premises had been used for external training and CPC courses however with the impending notice to be given to the landlord, JW confirmed the room had been cleared and the new room at High Ercall was complete and the CPC training had started there. MS confirmed he will now start the process with the landlord and estate agent.”
“MJ raised the point of payment for February for Directors. Although management figures were poor for the last 3 months we are still strong on a balance sheet and we still have a facility for drawdowns so in his opinion we would be ok to pay dividends in February. This would need to be managed on a month by month basis however so he would like to address this at the board meeting on 26.02.19.”
“The directors are happy with the results of the company in the year and are positive about the future outlook. Dividends of£219,478 (2018:£215,945 ) have been paid from profits made. The directors appreciate that any plans for future development of the business may be subject to unforeseen events outside our control. However, the directors consider the performance of the business continues to be positive and its cash position remains strong.”
“We note your comments that the company has incurred the cost of a valuation. However, as far as our clients are aware it has not actioned nor had any valuation prepared. Can you please provide confirmation of your supporting evidence of a valuation and the costs being incurred by our client.”
“• After much discussion the Directors note with some concern the downward projections in relation to business through to the yearend specifically in light of the continuing uncertainty in relation to Brexit. • The Directors note that the company is currently subject to a Petition, threatening Winding Up, based on allegations of unfair prejudice brought by Mr Andrew Simmonds, former Director of this company. The potential impact of defending this litigation coupled with the uncertain economic future in respect of the business has caused the Directors to consider the current Dividend Policy. • The Directors consider it wholly prudent that the current practice of paying a monthly dividend to the shareholders be suspended pending finalisation of year end accounts for 2019/2020, and probably for the subsequent year. • In light of the suspension of ongoing dividend payments the Directors also agree that current salaries in respect of Mark Simmonds, Jeremy Wilson and Neil Simmonds be amended. Mark Jones is authorised to make the appropriate PAYE amendments to confirm payment from November 2019. • To confirm dividends will not be paid for at least the next two years as a result of: • Brexit uncertainty • Downturn in current trading, and anticipated continuance of this • Continued litigation and employment legal costs • To protect the company from future shareholder disputes”
“as nominees for and on behalf of the registered shareholders in Simmonds Transport Limited, on the same pro rata basis as per the shareholding in Simmonds Transport Limited.”
“At our last meeting the option presented was for Simmonds Transport to take over the business in its entirety, for all Directors to stand down and the shareholding transferred to Simmonds Transport. As Simmonds Transport has provided business loans and regular management charges to STA (Shropshire) Ltd this was considered to be an appropriate course of action, to which you expressed your agreement. …The Directors of the Board are prepared to take on the loan and repay your capital investment of£14,902.74 , payable monthly over a period of 3 years on the strict understanding that the company remains in profit. If the company can afford to pay this off any earlier then it will do so.”
“Both Andrew and myself confirm that we can agree as discussed with you the following; 1. Repayment of your Directors Loan 2. Compromise Agreement. 3. Release or indemnity for the Guarantees given by you for STA 4. Resignation as a Director/ Secretary 5. You are to sign a Stock Transfer form to transfer your shares back to either the Company or one or other or both of myself and Andrew”
“3. Cash in the bank is£25,000 in the No 1 Account and£40,000 in the current account. Everything is up to date and being paid and a separate account has been set up to pay corporation tax. … 14. It was agreed the Simmonds Transport would finance STA to the tune of£25,000 and Directors agree to provide guarantees if necessary.”
“Shares in Simmonds Transport to be altered as agreed with a cost of approx.£3,000 to be done immediately. Also shares in STA to be reviewed now.”
“Mark & Andrew Simmonds will now sign over there [sic] shares of 40% each to Simmonds Transport Ltd who will own a total of 80%. Budgets for the new year we went through and confirmed a few alterations for then to be agreed as a working document. A further meetingWill be arranged to then confirm this document. The board agreed to alter Mike Price’s wages to a salary of 35k per anum [sic].”
“2. Reports by Senior Directors in each business: … Andrew Simmonds - STA 4.
“9. Other Business’s [sic] In January I will issue written updates on STA & 1ST4 Biofuel Ltd (Woody) this will include the position of each business and the current and future structure.”
“8. STA Performance and communication is good between the businesses. Spend on our vehicles is the priority now to keep below budget. Mot pass rates are good still keeping our ratings high. Also now we are happy with the tyres from China we can proceed to use those tyres on certain vehicles within the fleet thus saving on tyres .”
“[Jeremy] referred and updated on his recent discussions with Palletline over STA staying in the existing premises. Arrangements were to be agreed. Would involve a small increase in the rent.”
“Banking Facilities I have recently been in talks with Barclays Bank, who seem very keen to win us over as a client. Firstly they have agreed a loan for STA Shropshire to fund the large spend that has occurred in their redevelopment at Halesfield. However as STA cashflow seems to be coping currently, we will be leaving this alone for now. This would have involved a second charge on the property, and probably moving our banking over to Barclays as a whole - which wouldn’t be a real problem.”
“It is becoming more of a hot topic, but I will leave it to you to decide if you wish to run the risk.”
“Year End Accounts for Simmonds Transport Ltd, STA Vehicle Centres Ltd and Woody Wood Products Ltd have all been finalised and sent to Companies House for the 2017/18 year end. All corporation tax due has been paid.”
“JW asked about STA dividend 2016/17 we agreed 10k which has to be drawn through MS & AS. We also have 2k that we can all draw when need to, but will have to run past MS when needed.”
“TAE Personal 1650.00 TAE Company 852.00 STL 50/50 STA Colin 100% 5495.50 STA Andy 50% 2742.75 Andy 50% 2742.57”