Aviva PLC v Litani LLC [2025] EWHC 3134 (Ch)

[2025] EWHC 3134 (Ch)

Case No CR-2024-005847

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

INSOLVENCY AND COMPANIES LIST (ChD)

Venue Rolls Building Royal Courts of Justice, 7 Rolls Buildings London EC4A 1NL

Date 1 December 2025

Before

INSOLVENCY AND COMPANIES COURT JUDGE GREENWOOD

Between

AVIVA PLCClaimant

LITANI LLCDefendant

IN THE MATTER OF AVIVA PLC

AND IN THE MATTER OF THE COMPANIES ACT 2006

Mr Martin Moore KC and Mr Tom Hall (instructed by Slaughter and May) for Claimant

Mr Andrew Thornton KC (instructed by Edwin Coe LLP) for Defendant

Hearing Hearing date: 14 November 2025

JUDGMENT

This judgment was handed down remotely at 10.30am on 1 December 2025 by circulation to the parties or their representatives by e-mail.

ICC JUDGE GREENWOOD

Introduction

[1]On 30 September 2024, pursuant to section 116 of the Companies Act 2006 (“the CA 2006”), the Defendant, Litani LLC (“Litani”), submitted to the Claimant, Aviva Plc (“Aviva”), a written request for a copy of its register of members (“the Request”). The Request explained the purpose for which the information was to be used in the following terms:

“Purpose for which the information is to be used: for the purpose of making an offer (“Offer”) to shareholders (with a maximum acceptance set at no more than 1% of the issued share capital of the Company as at the business day prior to the date of the Offer) to purchase their shares at a discounted price (discount not to exceed 17.5% of the market value of the Company's shares, the market value being determined as at the business day prior to the date of the Offer). Litani intends to make the Offer to all shareholders other than those shareholders which appear to be institutional shareholders, those shareholders which it considers have an unusually large or small shareholding and those shareholders who are registered on the Aviva Share Account. The offer will provide that shareholders who accept the Offer may withdraw their acceptance within 14 days of receipt of their acceptance. The Offer will provide clear disclosure of the market price of the shares, and the Offer price relative to that price, as at the business day prior to the date of the Offer, how shareholders may obtain an updated market price and alternative means of selling their shares, should they wish to do so. The Offer will proceed only if it is approved by an authorised person for the purpose of section 21 of the Financial Services and Markets Act 2000. The authorised person is S.P Angel Corporate Finance L.L.P. The maximum amount payable to shareholders under the Offer will be deposited with an independent paying agent, Zedra UK Services Limited (“Zedra”), prior to the Offer being made. Zedra will be responsible for making payment by electronic transfer of funds to accepting shareholders. Zedra will not receive any data comprising the Register and instead will receive information that Litani obtains from completed forms of acceptance received from shareholders (see below). The Panel on Takeovers and Mergers has ruled that the proposed offer is not regulated by the City Code on Takeovers and Mergers. The Offer will be communicated to shareholders of the Company by way of a cover letter, a circular (“Circular”) and a form of acceptance, sent by post. Acceptance of the Offer will be entirely at the discretion of the shareholders. If shareholders have any questions concerning the logistics of accepting the Offer as set out in the Circular, a helpline will be available to them. The helpline will not provide any legal or financial advice nor confirm any information not contained in the Circular. Acceptances will be dealt with on a “first come first served basis”

. An example of the documentation used in an offer recently made by Litani for shares in Sun Life Financial Inc. is enclosed. The documents to be used in Litani’s offer for shares in Aviva plc will be substantially similar to those documents. As required by the Panel on Takeovers and Mergers, the Circular will make it clear that the Takeover Code does not apply to the Offer. No fees will be charged to shareholders by Litani or any of its service providers in relation to the offer.”

[2]In response, on 4 October 2024, within the five working day window prescribed by section 117 of the CA 2006, Aviva applied by Part 8 Claim Form for an order that a copy of the register was not being sought for a “proper purpose”, and that it ought therefore be directed not to comply with the Request. This is my judgment in respect of the final hearing of that application.

[3]Aviva is the product of the merger of various insurance businesses, including Norwich Union after its demutualisation. As a result of that demutualisation, Aviva has a large number of retail shareholders, who made up (as at 7 March 2024) 99.32% of its members but held only 6% its shares by value; its shares are quoted on the London Stock Exchange, and its certificated shareholders are able to sell their shares (for a fee) at market value through a service operated by its registrar, Computershare Limited (“Computershare”). For certificated trades, the fee for dealing through Computershare is 1.4% of the value of each sale, subject to a minimum of £40.

[4]Litani is a limited liability company incorporated in Delaware; it is not itself a member of Aviva. As was apparent from the Request, and was not in issue, its ultimate purpose - unconnected with the conduct of Aviva’s affairs as such - was avowedly commercial: it conducts an arbitrage business by mailing offers to certain shareholders of demutualised companies, seeking to buy their shares at a discount to market value (in this case, of 17.5%) which it then aggregates and sells on the stock market.

[5]It was not suggested by Aviva that Litani’s proposed offer would be unlawful, fraudulent, or misleading; it was not suggested that Aviva’s members would, in any sense, be coerced into acceptance, or that Litani would engage in harassment or vexatious conduct towards them; Litani does not intend to give financial advice, or to make unsolicited contact other than through the mailing of offer documents; it was not suggested that the purpose of purchasing shares for a sum less than their market value (in order to sell them at a profit) is inherently improper; shareholders will be free to accept or decline Litani’s proposed offer, and will be given a 14 day “cooling-off” period.

[6]On 23 October 2025, after the commencement of these proceedings, Aviva opened its own alternative small shareholder dealing service (“theSSDS”), available to any of its shareholders holding between 1 and 1,500 shares. Under the SSDS: 6.1. share sale and lost share certificate forms have been posted directly to the shareholder; 6.2. no dealing or lost share certificate indemnity fees are charged to the holders of between one and 100 shares; and, 6.3. for the holders of between 101 and 1,500 shares, the dealing and lost share certificate indemnity fees are £40 each; 6.4. the first trades took place on 4 November 2025, and the service will conclude on 5 February 2026.

[7]Against that briefly summarised background, Aviva’s case was that Litani’s purpose is not a proper one, and that its proposed use of the register would be against the interests of all of Aviva’s members, in circumstances where: 7.1. the holders of the vast majority of its shares will not receive any offer from Litani at all: for those members, to allow Litani access to the register would serve no good purpose, but would subject them to the risks inherent in the disclosure and processing of their private data by a third party, made worse in this case because of concerns about Litani - an “unknown quantity whose operations remain shadowy at best”; 7.2. of those who do receive an offer, many (probably the vast majority) will not accept it – for those shareholders, the offer will be an “unwelcome inconvenience”; 7.3. those who choose to accept the offer will be economically disadvantaged by virtue of the 17.5% price discount, and will receive no compensating practical advantage, given that they could just as easily obtain full value for their shares by using Computershare or the SSDS; Aviva is concerned that only the vulnerable, unwary or unsophisticated would accept Litani’s offer; 7.4. in addition, the court cannot be confident that those who accept Litani’s offer will receive a safe and convenient service, given Litani’s lack of transparency, and given also certain concerns expressed by the Securities and Exchange Commission (“the SEC”) in the US in the course of their inquiries conducted in respect of mini-tender offers in that jurisdiction. The Law The Statutory Provisions

[8]The relevant provisions are as follows.

[9]Section 116 of the CA 2006 states:(1) The register and the index of members' names must be open to the inspection - (a) of any member of the company without charge, and (b) of any other person on payment of such fee as may be prescribed.

(2) Any person may require a copy of a company's register of members, or of any part of it, on payment of such fee as may be prescribed. (2A) ….

(3) A person seeking to exercise either of the rights conferred by this section must make a request to the company to that effect.

(4) The request must contain the following information - (a) in the case of an individual, his name and address; (b) in the case of an organisation, the name and address of an individual responsible for making the request on behalf of the organisation; (c) the purpose for which the information is to be used; and (d) whether the information will be disclosed to any other person, and if so - (i) where that person is an individual, his name and address, (ii) where that person is an organisation, the name and address of an individual responsible for receiving the information on its behalf, and (iii) the purpose for which the information is to be used by that person.

[10]Section 117 states:(1) Where a company receives a request under section 116 … it must within five working days either - (a) comply with the request, or (b) apply to the court.

(2) If it applies to the court it must notify the person making the request.

(3) If on an application under this section the court is satisfied that the inspection or copy is not sought for a proper purpose - (a) it shall direct the company not to comply with the request, and (b) it may further order that the company's costs (in Scotland, expenses) on the application be paid in whole or in part by the person who made the request, even if he is not a party to the application.

(4) If the court makes such a direction and it appears to the court that the company is or may be subject to other requests made for a similar purpose (whether made by the same person or different persons), it may direct that the company is not to comply with any such request. The order must contain such provision as appears to the court appropriate to identify the requests to which it applies.

(5) If on an application under this section the court does not direct the company not to comply with the request, the company must comply with the request immediately upon the court giving its decision or, as the case may be, the proceedings being discontinued.

[11]Section 118(1) states: (1) If an inspection required under section 116 … is refused or default is made in providing a copy required under that section, otherwise than in accordance with an order of the court, an offence is committed by - (a) the company, and (b) every officer of the company who is in default.

[12]Section 119(1) states:(1) It is an offence for a person knowingly or recklessly to make in a request under section 116 … a statement that is misleading, false or deceptive in a material particular.

(2) It is an offence for a person in possession of information obtained by exercise of either of the rights conferred by that section— (a) to do anything that results in the information being disclosed to another person, or (b) to fail to do anything with the result that the information is disclosed to another person, knowing, or having reason to suspect, that person may use the information for a purpose that is not a proper purpose.

[13]A number of propositions follow immediately from the terms and scheme of these provisions (and have been confirmed in the authorities, dealt with in more detail below).

[14]First, in the context of a formal application made by a company under section 117, the onus is on the company to show (to satisfy the court), on the balance of probabilities, that access is not sought for a proper purpose; unless an application is (successfully) made, the company must comply with the request, and it must do so in short order, within five working days; a failure to comply is treated seriously - it is an offence.

[15]Second, there is however also a burden on the requesting party, a prior burden: in order to gain access to the register, such a person must, amongst other things, state the purpose for which the information is sought; ex hypothesi, if access is to be given, that purpose must be a “proper” one, and it must be stated in sufficient detail to enable the company to assess it, and its propriety, within five days; a request not made in accordance with the statutory requirements is not validly made – the company need not comply with it; again, the failures of a requesting party are treated seriously – the provision of misleading, false or deceptive particulars to the company, or the disclosure of information obtained to a person who may use it for a purpose that is not proper, may comprise an offence.

[16]Third, apart from the obligation to pay a prescribed fee in order to receive a copy of the register, there is no distinction, in principle, between a request made by a member, and a request made by an outsider: in other words, although the circumstances and considerations will very obviously differ, it must in principle be possible, at least at some level of abstraction, to describe that which is not a proper purpose (or perhaps more accurately, to identify that which is relevant to assessing propriety) in terms capable of applying to both varieties of request.

[17]Although access might be sought, as I have said, by either member or outsider, the status of the requesting party may nonetheless be relevant (if it bears on his purpose - the test is one of purpose, not person or character): for example, a member seeking information in order to requisition a meeting or communicate in respect of the company’s affairs, would generally be regarded as acting for a proper purpose. Connectedly, a proper purpose would ordinarily concern the company’s members in their capacity as such: for example, a person whose purpose is to obtain a convenient list of potential customers (who happen to be a company’s members) to whom to advertise some product wholly unconnected with the company’s business would not generally be regarded as acting with a sufficiently good purpose.

[18]Fourth, although the distinction may be fine (and in many cases irrelevant), it is nonetheless the case that the statutory provisions do not refer to proof by the company of an “improper purpose”, but instead, negatively, to proof that the stated purpose is not a proper one: that legislative choice of language draws attention to the requesting party’s initial, positive obligation, to state and sufficiently particularise a proper purpose (for the company to negative) if he is to justify access.

[19]Fifth, on an application made by a company, the court has no discretion to exercise, at any stage of the decision making process: first, it must, on the evidence, as a matter of fact, identify the requesting party’s purpose; second, having found that purpose, it must decide whether it is not proper - that is an evaluative process, essentially a value judgment, requiring a consideration by the court of all the relevant factors (a variety of process explained for example, by Hoffmann LJ, as he then was, in Re Grayan Building Services Ltd [1995] B.C.C. 554 at 575A-576A, albeit in a different context); and finally, if it concludes that the purpose is not proper, it must order the company not to comply with the request – at that stage, an order is mandatory.

[20]Thus, although the Act refers to the company’s obligation to keep the register “open to inspection”, and to the exercise of “rights conferred” by section 116 to be given access, it follows that those rights of access are qualified rights, as explained: they are not absolute.

[21]Furthermore, it follows that the company’s members must also have “rights”, albeit also qualified, to the maintenance of an appropriate degree of privacy in respect of the contents of the register, which are not to be revealed, disseminated and used without some good and sufficient reason; those rights are to be protected by the company (and the court) by means of an application under section 117; their importance is underscored by the prescribed offences. In agreeing to become a member of a company (and to the inclusion of their name and other details on the register of members) a person impliedly consents to the disclosure of that information under section 116 (whether to another member, or an outsider), but only for a “proper purpose”.

[22]From whichever side approached, the parties’ rights are thus qualified by reference to the existence of a “proper purpose” – that concept therefore sits at the heart of the scheme.

[23]In Fox-Davies v Burberry Plc

[2017] EWCA Civ 1129

, at [9]-[11], which I consider in some detail below, David Richards LJ (as he then was) explained the point as follows: 9. It is apparent from these provisions that they seek to balance two interests that may conflict. The first is the interest of both members of the company and the public at large in being able to know the identity of the members of companies and the extent of their shareholdings. As well as facilitating communications between shareholders, the ownership and control of companies is a matter of legitimate public interest (although access to the register of members may in practice be of limited effect in this regard, given the ability to hold shares through nominees). That interest extends also to the addresses of members so that communications may, in appropriate circumstances, be sent to them. 10. The second is the interest in protecting members from abuse of the right of access to their personal information as members of a company. While the first interest is promoted by the right of access granted to members of the company and all members of the public by section 116(1) and (2), the second interest is protected by the requirements of section 116(4) as to the contents of a request for inspection or a copy of the register and by the power of the court under section 117 to direct a company not to comply with a request if satisfied that the inspection or copy is not sought for a proper purpose. Both interests are recognised by the offences created by sections 118 and 119. 11. The protection of the interests of members is directed at two concerns. The first concerns the extent to which information about members obtained under section 116 will be disseminated. Thus, section 116(4)(d) requires the request to give the details there specified of the persons to whom the information will be disclosed. The second concerns the purpose of the request, which must be stated in the request (section 116(4)(c)). If the purpose is ruled improper by the court under section 117, the company will be directed not to comply with the request.

[24]To similar effect, in Burry & Knight Ltd & another v Knight

[2014] EWCA Civ 604

(again, considered in greater detail below), Arden LJ (as she then was) explained, at [7]-[18]: 7. The Companies Act 2006 (“the CA 2006”) in general requires every company to keep a register of its members, showing (in the case of a company having a share capital) for each member his name and address, the date he was registered as a member or ceased to be a member and the number and class of his shares and the amount paid up on those shares. 8. Persons other than the company may have a legitimate interest in accessing the information in the register. A member may, for instance, need the information in the register because he wants to obtain support from other members to requisition a general meeting of the company. A member of the public may need the information in order to investigate whether the board has issued shares improperly, for example by issuing them to their associates. 9. Accordingly, statute confers rights to inspect and take copies of the information in the register of members. Under the Companies Act 1985, section 356, anyone could obtain access to the register and a copy of it. However, there was evidence that some people were abusing this right and seeking the information in order to harass the members. 10. So since 2006 these rights have been qualified. In the CA 2006, Parliament has sought to provide some protection for members against improper requests by enabling the company to obtain a court order preventing access if the request fails a “proper purpose” test. Accordingly under the CA 2006: the person who wants access to the register must make a request for access which states the purpose of the request (section 116); the company may within 5 days apply to the court for an order relieving it from any obligation to comply with the request, and the court has no option: it must make this order if it is satisfied that the request is not made for a proper purpose (section 118). 11. This is a major change in the law. Formerly, the law regarded the right of a shareholder to access the share register as an incident of his property right in his share, and did not inquire into his motives for wanting access: see Davies v Gas Light and Coke Co

[1909] 1 Ch 248

. 12. Section 119 creates two new offences:(1) to include in a request under section 116 a statement that is materially misleading, false or deceptive; and

(2) to disclose information obtained pursuant to such a request to a person when he knows or ought to suspect that the information will be used for an improper purpose. 13. … 14. … Policy reason for the no-access provision 15. I start with the mischief to which section 117(3) of the CA 2006 was directed. Ms Lexa Hilliard QC, for Dr Knight, pointed out that Margaret Hodge MP, Minister in charge of the Bill at that stage, spoke during the committee stage of the Companies Bill leading to the CA 2006 of abuse of the right to inspect the share register. 16. These abuses were the subject of recommendations by the Steering Group of the Department of Trade and Industry's Company Law Review (“the CLRSG”), of which I was a member. Section 117 was enacted following acceptance by the Department of those recommendations. In its Modern Company Law For A Competitive Economy: Final Report (www.dti.gov.uk/cld/review.htm), the CLRSG pointed out that the right of access to share registers was abused by, for instance, bounty hunters or people who sought to use the names and addresses for advertising purposes. 17. The principal recommendation made by the CLRSG on this point was that the Companies Act should restrict access to the share register. The CLRSG went on to recommend an approach not wholly dissimilar to the approach in the Australian Corporations Law. Under that Law, the applicant has to make his application in a prescribed form, and must set out in it each of the purposes for which he seeks access (section 117(3A) (c)). None of the purposes must be a proscribed purpose, and the proscribed purposes include such matters as requesting a donation from a member. The CLRSG recommended that purposes of access be limited to some (different) prescribed purposes (see Final Report, paragraph 11.44). However, Parliament has not identified any purposes as improper. Thus it has left the words “proper purpose” at large for the courts to work out in the conventional way, using the context and on a case by case basis. I therefore agree with the Registrar that Parliament intended to leave the meaning of “proper purpose” open for the courts to determine, and not to limit or define it.

[25]Centrally, as I have said, once identified, it is for the court to evaluate the propriety of the requesting party’s purpose, assessed in the context of the parties’ competing rights to access and non-disclosure. How is it to do so? There is no simple or mechanical test, capable of unthinking application. In Burberry, Longmore LJ observed, at [76], that “almost ostentatiously”, Parliament has provided “no assistance to company lawyers seeking to understand” these provisions. Nonetheless, from the authorities, including in particular, Burberry itself, and Burry & Knight, a number of uncontroversial principles can be stated.

[26]First, propriety of purpose is to be evaluated “objectively”, by reference to the court’s own standard: per David Richards LJ in Burberry at [47].

[27]Second, Parliament has “left it to the courts to determine proper and improper purposes in the conventional way, using the context and on a case by case basis. The judgment whether a purpose is proper will often depend on the precise facts and circumstances in which it arises for decision”: per David Richards LJ in Burberry at [35]. In Burry & Knight, at [18], Arden LJ observed that the “registrar held, and I agree, that the words “proper purpose” should be given their “ordinary, natural meaning”. He held that a proper purpose ought generally, in the case of a member, to relate to the member's interest in that capacity and to the exercise of shareholder rights. I agree with this approach, provided the last “and” is read as “and/or”, …”.

[28]Third, it may not be possible in a given case to draw a “sharp distinction” between “ends and means” – in other words, between the purpose as such (and its objective), and the manner in (or terms on) which it is to be effected or achieved – both may be relevant, or even critical, to the evaluation process: Burberry at [50], [64] and [86].

[29]Fourth, it has been said that the court may have some regard to the guidance note issued by the Institute of Chartered Secretaries and Administrators (“the ICSA Guidance”): see Burry & Knight at [19], where Arden LJ said that it, “might well provide useful guidance in a particular case since it distils the experience of its members. It gives as one example of a purpose that, in the view of the working group responsible for the guidance note ought to be regarded as proper, “shareholders … wanting to contact other shareholders about matters relating to the company, their shareholding or a related exercise of rights”. The examples of improper purpose include “any representation or communication to members that the company considers would threaten, harass or intimidate members or would otherwise be an unwarranted misuse of the member's personal information”.

[30]Underlining the points made above, the ICSA Guidance states, amongst other things:

“Companies need to bear in mind, as part of the background when considering requests under section 117, the provisions of the GDPR and DPA. Every company has a duty to ensure that personal data, which it controls, is not disclosed unlawfully or unfairly. It follows that a company (including its registrars) will be obliged to make sure the purpose underlying a proposed disclosure is a proper one to avoid the risk of a claim by a shareholder that his or her data protection rights have been infringed. Such a claim could be brought under the GDPR by any affected shareholder.”

There are many areas where the GDPR and DPA overlap with other legal and regulatory obligations of listed companies, so the GDPR and DPA requirements need to be balanced against the company's legal obligations under sections 116-119 of the Act when considering a section 117 request. However, there is the potential for a company to incur a substantial fine for breach of the GDPR and DPA, so the risks associated with such a claim should not be underestimated. The risks should therefore be carefully balanced against the costs of a court application in guiding a company's decision as to whether or not to comply with a request to inspect, and/or for a copy of, the register.”

[31]Although a person who becomes a company member thereby consents to the possibility of access being given under section 116, he consents only to access for a proper purpose, and it is only a proper purpose that justifies disclosure of his personal data.

[32]In stating those first principles, I have referred to the two leading authorities, the Court of Appeal’s decisions in Burry & Knight and Burberry. Whilst those decisions are I think consistent both with each other and (if I have stated them accurately) with the principles that I have thus far sought respectfully to draw from them, it was common ground between counsel before me, that the judges in Burberry did not each approach that case, or state the relevant principles, in completely the same way; moreover, counsel differed as to the conclusions that I should draw from those cases. It is therefore necessary to consider them both in greater detail, and to be clear about the basis upon which I will decide this case. Re Burberry Plc

[33]The case concerned a lost member tracing agency. The applicant company, Burberry, had its own tracing agency, called “ProSearch”, which would contact lost members and send them a claim form agreed with Burberry detailing their shareholding and outstanding cash entitlements, and giving them the option of claiming the shares directly with Burberry or though ProSearch. They paid no charges if dealing with Burberry directly, but if they used ProSearch they were charged 12.5% of any cash entitlement and share value recovered.

[34]One Mr Fox-Davies, the requesting party, operated a similar business. A key difference was that under his business model, members would not be informed of the value, nature or location of the asset until they had first agreed to pay his commission – only then would he reveal information about the property. His agreed commission was payable whether or not the shareholder used his services or dealt directly with the company, provided only that the information assisted recovery of the property. No evidence was given by Mr Fox-Davies of the amount of commission (or the terms on which he proposed to deal) and it was not published.

[35]As part of his business, Mr Fox-Davis decided to seek to trace Burberry’s missing members. To this end, he made a request under section 116 of the CA 2006, to which Burberry responded by making an application under section 117.

[36]Before Registrar Briggs (as he then was), Burberry’s application succeeded. The Registrar held that the request did not comply with section 116, so that Burberry was not in any event obliged to comply with it, and furthermore (more importantly, for present purposes) that the request was not made for a proper purpose.

[37]At [58] of his judgment (at

[2015] EWHC 222 (Ch)

), the Registrar set out the reasons for his conclusion that the interests of shareholders would not be advanced by allowing access:

"58. In my judgment the interests of shareholders are not advanced in this case as the following circumstances prevail: 58.1 two or more agencies with more than one set of terms and conditions may lead to confusion if both contact a lost member; 58.2 the terms of engagement applicable to one lost member differ to one another merely because one agency reached a lost member before another; 58.3 a lost member may have a grievance upon learning that another agency was offering better terms but due to the terms and conditions imposed by Mr Fox-Davies is not able to choose [ProSearch] or go direct to the Company without paying a fee to Mr Fox-Davies; 58.4 Mr Fox-Davies is based out of the jurisdiction; 58.5 the commercial practice of Mr Fox-Davies as a tracing agent is in doubt or unknown; 58.6 nothing is known about external agencies used by the tracing agent: I do not accept that section 119 of the Act provides sufficient prophylactic where information is to be provided to unknown persons or organisations in foreign jurisdictions."

[38]His conclusion and reasons were then set out at [59]:

"59. Having in mind (i) the ordinary meaning of words in section 117 of the Act (ii) the reason for the legislative changes incorporated in the 2006 Act (iii) the guidance provided by the ICSA (iv) the real purpose for the request, as I have found (v) the Company's articles of association (vi) the Company's sensitivities regarding access to the information (vii) the Company's engagement of a tracing agent prior to the request (viii) the continuing nature of the engagement (ix) the stated purpose of the request (x) the characteristics of the defendant requester (xi) the intended use of the information and (xii) the way in which the information is to be used, I conclude that the real purpose is not in the interests of shareholders and am satisfied that on the balance of probabilities the request is not for a proper purpose."

[39]The Court of Appeal dismissed Mr Fox-Davies’ appeal, primarily on the ground that the original request was defective, because it failed to comply with the requirements of section 116(4)(d) of the 2006 Act (see [23]-[32] per David Richards LJ; [59] per Sir Patrick Elias; and [80] per Longmore LJ).

[40]The judges also agreed that Mr Fox-Davies’ purpose was not a proper one. However, in this respect their reasoning differed. The Judgment of David Richards LJ

[41]In respect of propriety of purpose, David Richards LJ said that the test does “not depend on whether [the request and proposed use] is in the interests of shareholders” (although a conclusion that the information would be put to a use positively contrary to their interests “could, indeed almost certainly would, legitimately found a conclusion that the purpose was not proper”); that there was no clear distinction in principle to be made between requests made by members and those made by non-members (albeit “shareholder democracy will generally justify a request for the register for the purpose of circulating shareholders on matters relating to the company”) – the point made above at [17]; and that it was not possible to make a “sharp distinction between ends and means” (between the purpose and the manner of its execution) – the point made above at [28], and in respect of which there was unanimous agreement in the Court of Appeal.

[42]He expressed his conclusions as follows: “51. ... In my judgment, the Registrar was justified in finding that the appellant's purpose was to "extract" a commission or fee from traced lost members, by not disclosing the asset to which they may be entitled before they agree to pay his commission, and that this purpose was not proper. Members of a company are required to provide their names and addresses to the company and the company is in turn required to record that information in its register of members. The appellant's request involves obtaining that personal information by the statutory machinery and then using it to his financial advantage through the expedient of not disclosing to those members the very information that he has obtained, namely that they hold shares in Burberry.52. In his judgment at [58] … the Registrar listed six reasons for his conclusion that the interests of shareholders were not advanced by giving access to the appellant to the register. I have already explained that, while a proper purpose need not be in the interests of shareholders, the purpose in this case is said by the appellant to be in their interests but the Registrar's conclusion is, on a reading of the full judgment, that access to the register would be against their interests. Read in isolation, the six reasons are open to criticism, and some of them (for example, the appellant being based out of the jurisdiction) could not even cumulatively justify a finding that the purpose was improper. None of them was necessary to the Registrar's decision that, insofar as they were known, the terms that the appellant would offer to lost shareholders made his purpose improper. However, some of the reasons did legitimately draw attention to the fact that ProSearch was doing the same job on unobjectionable terms. Those reasons are addressed to the way in which the appellant would go about his business, once armed with a copy of the register. As I have earlier said, means and ends cannot be separated in a case like this. Above all, at [59] and elsewhere in his judgment, the Registrar identified the terms on which the appellant would obtain payment from traced members, and his use of the register for that purpose, as amounting to an improper purpose.

53. In my judgment, the Registrar was fully entitled on the material before him to conclude that the appellant's purpose was not proper and accordingly to direct Burberry not to comply with the appellant's requests, even if they had otherwise complied with section 116.

[43]Accordingly, David Richards LJ held that the Registrar had justifiably decided that the request was positively “against the interests of members” (my emphasis) and that it was, essentially, the manner in which Mr Fox-Davies intended to go about his business (rather than its ultimate end) – first “extracting” a fee (the use of that word was in my view significant, suggesting disapproval) before revealing to the person the assets in question and their value – that rendered his purpose objectionable, and improper.

[44]It was this aspect in particular (not the fact of a merely commercial enterprise) – obtaining information from the register for a modest fee, and then holding it ransom, in order to “extract” money from members ignorant of their rights, but tempted by the prospect of unanticipated wealth, and necessarily therefore in a position of some commercial vulnerability – to which the judge objected, and to which he would not lend the court’s assistance.

[45]Essentially, there is a point beyond which, in this context, commercial practices, albeit inherently lawful, are treated as sufficiently unacceptable, or exploitative, such that access to the register in order to pursue them, will be denied. Although the location of that point, in any given case, necessarily entails a value judgment in respect of which different judges may reach different views (as is apparent, in particular, from the judgment of Sir Patrick Elias considered below), in my judgment, both as a matter of principle (if it is to be practically workable in the time permitted) and indeed authority (as I shall explain) it requires a flavour of the genuinely exploitative or unscrupulous – something that can be securely identified by a court in the context of a summary legal process, as sitting beyond the pale; short of that point, within that broad boundary, the court is not equipped or required to choose between different lawful, commercial undertakings proposed to be conducted in a manner or on terms more or less desirable, more or less good, bad, advantageous or otherwise; this is not a context in which the court will or could sensibly seek to regulate or proscribe merely “undesirable” commercial activity in some granular fashion.

[46]In his submissions, Mr Moore relied on the reference at [52], to the Registrar having legitimately drawn attention to the “fact that ProSearch was doing the same job on unobjectionable terms”, to support his submission that the fact of another person undertaking the same function in an acceptable manner, on better terms, was in and of itself a reason to find that the requesting party’s purpose was not proper. I do not agree with that interpretation of the judgment – understood in context (the sentences immediately before and following) those words were plainly intended to support David Richard LJ’s conclusion that the Registrar’s judgment had in fact identified as a factor, that the manner of Mr Fox-Davies’ proposed approach was in itself objectionable; in other words, the existence of ProSearch and its business was not in and of itself a relevant factor, one way or the other; instead, it was that part of the Registrar’s judgment that allowed David Richards LJ to conclude that the Registrar had based his decision on the objectionable manner in which Mr Fox-Davies intended to proceed – which was the basis of his own conclusion; it cannot I think be seriously suggested that David Richards LJ would have reached a different conclusion, had ProSearch (and its “unobjectionable” service) not existed. The Judgment of Sir Patrick Elias

[47]In certain respects, Sir Patrick Elias disagreed with David Richards LJ, but in my view, essentially, their judgments were in many important respects based on the same principles.

[48]In the judgment of Sir Patrick Elias, the fact that Mr Fox-Davies’ objective was commercial did not of itself demonstrate the purpose to be improper – in that regard, I do not consider that he differed from David Richards LJ. It was not therefore in principle, but in his assessment of the limits of acceptable commercial practice, assessed on the facts of the case - that he differed: in particular, he fundamentally disagreed with the conclusion that a requirement to agree commission before revealing the asset - central to the conclusion of David Richards LJ - was necessarily improper:

“Costs will inevitably be incurred in tracing lost shareholders, and any commercial organisation will have to determine how to cover those costs. ProSearch has chosen only to charge those who opt to use their services to re-connect the shareholder with the company, but it is unrealistic to think that they would undertake this exercise unless they were confident that enough traced shareholders would pay that commission to make the business viable. I do not accept that any tracing business will have to operate in this way in order to render its purpose in accessing the register a proper one. Nor do I accept that it cannot be in the interests of the shareholders for a company to seek to cover its costs by requiring a fee before the identity of the company is made known. If the sum charged is a modest proportion of the value to the shareholder, it is unjust to characterise the company as a bounty hunter. It still leaves potentially a very substantial benefit to the shareholder which, but for the tracing activity, he may well never receive. Moreover, it is entirely a matter for the shareholder whether to accept the offer or not.”

[49]However, he did agree that it was necessary, in order to assess its propriety, to examine the requesting party’s proposed means of achieving his purpose, including the particular terms on which it would be pursued: at [64], he said, “I accept that if, for example, the terms on which a lost shareholder may be re-connected to the company are commercially oppressive, a court can properly find that it is not in the interests of the shareholder because of the way in which the purpose is being pursued, and accordingly conclude that the purpose is not a proper one” (the emphasis is mine).

[50]He also disagreed with David Richards LJ in respect of the Registrar’s judgment. His view was that the Registrar had not decided that the request and purpose was or would be positively harmful to members, but had considered simply that it was not in their interests. However, he also said that nothing really turned on the particular test adopted, because “whichever was applied”, none of the factors identified by the Registrar at [58] of his judgment, “save to a limited extent thelast” were material to the real issue.

[51]At [67], he said:

“I recognise that the ICSA guidance permitted the Registrar to have regard to the interests of the shareholders. But that is only in the context of determining the purpose of the request: is the information going to be used for a proper purpose? The guidance cannot be interpreted so as to deny access where a purpose is otherwise proper. It will not proper be if the terms are exorbitant, for example, and in such cases it will not be in the shareholders' interests to receive the communication” (again, the emphasis is mine). He held therefore that the interests of shareholders could be relevant – but only to the court’s evaluation of the requesting party’s purpose, which if proper, would justify access; in other words, he held that members’ interests were incapable of defeating a purpose which the court had otherwise assessed as proper. At [69], he made a similar point in respect of the requesting party’s commercial practices – that they are irrelevant unless they bear in some way on its stated purpose, or its ability in fact to undertake it; and again, at [72]: “The focus must be on the purpose for which access is sought, and the method of achieving that.”

[52]From that, it followed that in his view, because the focus must be on how the requesting party is going to use the information, the fact that another agency was already undertaking the same function on perfectly acceptable terms, was irrelevant: the test was not one of “desirability” of access, but of propriety of purpose. At [68], he said:

“In my judgment it distorts the language of section 116 to say that an otherwise proper purpose becomes improper because another party is already seeking to achieve the same objective. The point can be tested by considering the case of a second tracing agent who provides a cheaper service to shareholders than the agent already in place. Could it seriously be said to be acting for an improper purpose? Or would the purpose for which the original agent was using the share register suddenly become an improper one because less beneficial to shareholders than the new tracing agency? In my judgment either conclusion would be bizarre. The company (and subsequently the court) can only refuse the second request if, having regard to the purpose and manner in which the share register will be used by that requester, it concludes that the purpose is an improper one.”

[53]In that respect, as I have said (at [44] above), I do not consider David Richards LJ to have expressed a different, contradictory view; in this part of his judgment, Sir Patrick Elias was considering (and disagreeing with) the judgment of the Registrar, not that of David Richards LJ. He reiterated the point at [74]:

“I recognise the force of the point, referred to by the Registrar, that a potentially unfortunate consequence of my analysis is that … a shareholder may have made a payment to … in order to obtain information about the shareholding and very shortly afterwards have been approached by ProSearch, from whom he could have obtained the information for nothing. I do not think that this in any way invalidates the purpose …. It is a choice which the shareholder has made, and it is important to remember that there may be cases where, but for the intervention of the appellant, no successful re-connection would be made.”

He then referred to the possibility of imposing on the requesting party a condition, for example, that he should reveal to a person the existence of some extant other service. Having thus decided that the Registrar had misdirected himself, Sir Patrick Elias nonetheless concluded, at [73], that “the only proper response, if the correct approach had been adopted, was to refuse access to the register”.

[54]In that paragraph, he explained his conclusion as follows (emphasis added):

“Without information about the commercial charges – and none was provided to the court – a court could not properly determine whether or not the purpose was proper. The terms on which the information is provided are in my view critical to that question. Although I accept that the onus is on the company to show that the purpose is improper, the requester must at least provide sufficient information about the terms on which the lost shareholder will be reconnected to enable a proper assessment of the stated purpose to be made. Only the requester can provide this information and without it neither the company nor the court can be satisfied that the shareholder will not be exploited in a manner which renders the purpose improper. So long as there is a real risk that this might be so, and the only party who can provide evidence to remove that concern is the appellant, the failure to give any evidence even to the court is in my view decisive of the application.”

[55]Accordingly, it was the appellant’s own failure to provide any information about the proposed terms that prevented a favourable evaluation of his purpose, because that failure meant that the court was unable to know and decide that the proposed transaction with missing shareholders would not be exploitative, or commercially oppressive.

[56]The difference between Sir Patrick Elias and David Richards LJ was thus more superficial than of substance: David Richards LJ held that it was objectionable to obtain information from the register, and use it to “extract” money from the tempted ignorant; in that respect, Sir Patrick Elias disagreed – he thought that aspect of Mr Fox-Davies’ model fell within the bounds of acceptable, everyday, commercial hurly-burly; however, he found himself unable to rule out the real risk that Mr Fox-Davies’ (undisclosed) terms would in fact be commercially exploitative. The difference between the judges was not therefore about the court’s approach - both were concerned to find (or find the real risk of) markedly unacceptable, objectionable, oppressive or exploitative conduct (in the case of David Richards LJ, positively harmful to members) – but they ultimately found it in different places. The Judgment of Longmore LJ

[57]Longmore LJ, faced with this difference, at [80], to some extent agreed with both – relying on both of the factors relied on by the others:

“I agree with David Richards LJ and Sir Patrick Elias (1) …; and (2) that one of the (main) purposes of the request to inspect the register was to enable Mr Fox-Davies to persuade any shareholder, with whom he made contact, to accept on his terms the need for his services before informing such shareholder of the nature or value of the asset which is potentially recoverable and that that, on the facts of this case, is not a proper purpose, in the absence of disclosure of the full terms on which the lost shareholder will be reconnected to the company.”

[58]However, having said that (“enough to dispose of this appeal”) he then went on, at [83]-[86], to consider the extent to which the Registrar had taken irrelevant factors into account. In particular, he held (at [84]) that the Registrar had been entitled to consider whether or not Mr Fox-Davies’ proposed use would be in the interests of shareholders, but that his reasoning had been over-elaborate (at [85]); he said that, “To the extent that the Registrar may have thought either that Mr Fox-Davies' purpose was to make a commercial profit or that the existence of ProSearch rendered his purpose improper and that those were in themselves relevant considerations, I agree with Sir Patrick that they were not.” In that regard, as I have said, although Sir Patrick Elias considered and stated those conclusions more explicitly, I do not think there was any disagreement of principle with David Richards LJ – mere commerciality of purpose, or the mere existence of a competitor, or alternative, even a commercially preferable alternative, was not really the problem. Longmore LJ did however disagree with the view of David Richards LJ that the Registrar had in fact concluded and based his decision on a finding that Mr Fox-Davies’ purpose was harmful to members.

[59]In the final paragraph of his judgment, at [86], Longmore LJ then said (the emphasis is mine):

“The real problem in this case was that ProSearch was already on the scene offering apparently better terms to shareholders than Mr Fox-Davies was offering and without full information about Mr Fox-Davies' terms (which wasnever forthcoming) showing that in fact his terms were at least as favourable, the court was unable to hold that his activity was in the interests of the shareholders. That was effectively the Registrar's third circumstance in [58] of his judgment. For my part I consider the existence of ProSearch and knowledge of the terms on which they were prepared to deal with the shareholders were relevant matters for the Registrar to take into account. When one couples that with the fact that Mr Fox-Davies would only reveal to a shareholder the existence of the Burberry shares after the shareholder had agreed his terms, whatever they were, it can be seen that his purpose was not a proper purpose. The Registrar therefore reached the correct conclusion and I agree that this appeal should be dismissed.”

[60]I have not found it entirely straightforward to reconcile [85] (“To the extent that the Registrar may have thought … that the existence of ProSearch rendered his purpose improper and [that was in itself a] relevant consideration[s], I agree with Sir Patrick that [it was] not”) with [86] (“For my part I consider the existence of ProSearch and knowledge of the terms on which they were prepared to deal with the shareholders were relevant matters for the Registrar to take into account”) – but I think it represented agreement with the approach taken by David Richards LJ as explained above at [46] – mere competition was not in itself the problem, but that the Registrar was right to point to ProSearch insofar as he was assessing the propriety of Mr Fox-Davies’ purpose. It is also clear that Longmore LJ, like David Richards LJ (but unlike Sir Patrick Elias) considered Mr Fox-Davies’ proposal to reveal terms only after agreement, to have been objectionable (or at least, that it was a factor supporting that assessment).

[61]Perhaps the greater difficulty, however, is that Longmore LJ also said that without full information about Mr Fox-Davies' terms, “showing that in fact his terms were at least as favourable” as those of ProSearch, the court was unable to hold that his activity was “in the interests of the shareholders”. That view seems to me to have been different from, and contrary to, the views of both Sir Patrick Elias (who was explicitly concerned with the irresolvable risk of commercial exploitation) and David Richards LJ, whose objection was not to any particular (ultimate) terms of trade, but to the whole business of acquiring and using this information to “extract” money from the ignorant, and which again, as I have said, I take to have been an objection to perceived exploitation (by the adoption of an approach positively harmful to shareholders’ interests, rather than merely not “in their interests”).

[62]Longmore LJ’s approach might be thought to entail that a purpose is improper not because it is commercial and for profit (which he found to be acceptable) but because it is only in the interests of shareholders to allow or enable such commercial activity where it is proposed to be conducted on terms at least as good as those currently available in the market. That approach is not consistent, I think, with the approach taken by either of the other judges, although they differed, as I have said, in respect of the particular feature to which they objected. But it was also, I think, contrary to the views of the Court of Appeal in Burry & Knight, to which I shall now turn. Burry & Knight Ltd & another v Knight

[63]In Burry & Knight, a member of a company was found to have sought inspection of the register for two purposes:(i) to make unsubstantiated allegations about directors’ remuneration – an improper purpose; and

(ii) to communicate with fellow shareholders about the manner in which shares in the companies were proposed to be valued – a permissible purpose. In the event, a no-access order was made on terms that the company would circulate a letter from the member detailing his concerns about the valuation issues; the requesting party’s appeal was dismissed (other than in respect of the costs order) by the Court of Appeal. Arden LJ gave the leading judgment (essentially agreed by Briggs LJ (as he then was) and Christopher Clarke LJ).

[64]In the present context, the particular significance of this decision is twofold: first, that it illustrates another of the possible boundaries of proper purpose – that of complete inutility; and second, that in assessing utility, the court will allow room for the possibility that those (ultimately to be) involved should be allowed to decide for themselves whether or not the proposed use of the information would be valuable: in other words, that it is only where there is no real prospect at all, of utility, that the court will step in, and prevent access. It is with this approach, that in my view, the reasoning of Longmore LJ explained at [62] above (allowing only for commercial use of information on terms at least as favourable as those already available in the market) was not wholly consistent: as Sir Patrick Elias said, at [63] of Burberry, a proper commercial purpose, pursued in a lawful and acceptable fashion, not for example on commercially exploitative terms, does not become “improper” just because the same purpose (ex hypothesi proper) happens also to be pursued by someone else but on slightly better commercial terms – “it is entirely a matter for the shareholder whether to accept the offer or not” – it is for those involved to assess value; the court does not choose for them.

[65]In Burry & Knight, in the context of proposed communications with and between members, Arden LJ explained the point as follows, at [25]:

“… it is in principle for shareholders to assess whether a communication is of value to them and what action they should take. Parliament cannot in my judgment be taken to have intended the court to take a view about just how far the information which the member seeking access wishes to give him is information of value. This would involve the court making a commercial judgment as to the merits of the requesting member's view and would lead to satellite litigation which would delay a decision on access. In some cases, however, it will be obvious that the information is of no value, as where the information is already known to members or simply nonsense. But if the court is in any doubt, it should not make a no-access order.”

[66]In other words, if access is to be denied because the proposed use would be valueless, the court must be satisfied that it would obviously be completely valueless – plainly valueless in a way that can be quickly identified by a company, and then if necessary established by means of a summary procedure. At [73]-[75], Arden LJ said:

“73. In my judgment, the simple fact is that the information which Dr Knight seeks to convey to fellow members about his benefits in kind and directors' remuneration is not now apt to confer any benefit on the members. Dr Knight is essentially making his third attempt to pursue matters which are now very stale. Moreover, no corporate purpose in pursuing these matters is asserted by Dr Knight. There is virtually no reference in the correspondence to any ongoing effect of the defaults of which Dr Knight complains. In addition, there is very little reference in the documentation … to any damage which the companies suffered as a result of the defaults of which he complains or that these defaults might now result in the repayment of any benefit which the directors received. Since the complaints are about matters which happened in the 1990s, while it may once have been possible to prove them, it is very difficult to conceive that Dr Knight could ever prove these matters now that Mrs Knight has changed her mind about supporting his case. There are also indications in the correspondence that Dr Knight's aim in the past has been to obtain an admission from the directors about improprieties and to seek a voluntary settlement with the revenue. He was asking the board to do what in his judgment was morally right rather than to obtain improvements in corporate governance. 74. While Dr Knight had previously suggested a voluntary settlement with the revenue, which might have avoided penalties, he had copied his letters of complaint to the directors of the companies to the revenue and the revenue had taken no interest. There is therefore no indication that there is any risk now of penalties from the revenue. 75. In those circumstances I am satisfied that Dr Knight's purpose is not a proper one in so far as he seeks access to the share registers in order to pursue with other shareholders his long-standing benefits in kind and remuneration allegations. If there was anything in these points, he would have circulated shareholders about these matters before now.”

[67]At [111], Briggs LJ put the same point as follows:

“The allegations which [the appellant] was seeking to resurrect were very stale and their further investigation could have been of no possible benefit to the companies or to their shareholders, or indeed to him in his capacity as shareholder”

(emphasis added); at [120], Christopher Clarke LJ described the proposed use as “without value or utility” (having at [117] agreed with Briggs LJ at [113], on the need, if possible, to avoid “a trial (mini or otherwise)”).

[68]Finally, the Registrar had found that Dr Knight was seeking to “make mischief”, and that he was, in truth, pursuing a family vendetta (that he had, in the words of Briggs LJ, at [114], “become sadly obsessed with what was at heart a family dispute, and had altogether lost sight of the interests of the companies or their shareholders in connection with it”). Leaving aside the discussion of whether or not in that case, that finding was justified by the evidence, or open to the Registrar, it was accepted that in principle, that finding - that Dr Knight was intending, in effect, to harass his fellow shareholders - would have justified a refusal of access. Like complete inutility of proposed use, or use in a manner that is commercially immoral, unacceptable or exploitative, a mere desire to obtain information with which to harass a company’s shareholders or continue against them some personal vendetta, will justify a finding of no proper purpose – it represents another of the clear boundaries of propriety. Summary of the Principles

[69]This consideration of the law in respect of propriety of purpose has already been somewhat lengthy. At the risk of repeating myself and further burdening this judgment, but perhaps in the interests of convenience and clarity, the relevant principles, or at least, the principles upon which I will proceed (in addition to those stated above at [14]-[19] and [26]-[29]) are, in summary, as follows.

[70]First, the court’s focus is on an assessment of the requesting party’s purpose, and whether it is not proper. It is by virtue of that evaluation that the competing parties’ rights and interests are balanced. Thus, the interests of members, whilst undoubtedly a potentially relevant factor, are relevant only to that issue, if and to the extent that they bear on it.

[71]Second, the fact that the requesting party’s objective is to make a commercial profit, does not mean - in and of itself - that its purpose is not proper.

[72]Third, that there are however limits to that which is commercially acceptable, in this context, as a justification for access: a proposal to engage in some commercially oppressive or exploitative conduct, is for example likely to justify an order denying access; that involves the court in a value judgment in respect of which different judges may differ; but the scope of that which is acceptable is likely to be broad. As I said above, at [45] and [56], in my view, it is necessary to find something with a flavour of the genuinely exploitative or unscrupulous – something moreover that can be securely identified by a court in the context of a summary legal process, as sitting beyond the pale; short of that point, within that broad boundary, the court is not equipped or required to choose between different lawful, commercial undertakings proposed to be conducted in a manner or on terms more or less desirable, more or less good, bad, advantageous or otherwise; this is not a context in which the court will or even sensibly could seek to regulate or proscribe merely “undesirable” commercial activity in some granular fashion.

[73]Fourth, there are of course other limits, discernible on a case by case basis – for example, utter inutility of purpose, or an intention to harass shareholders for some reason unconnected with the company’s business.

[74]Fifth, connectedly, it is generally for those involved (or to be involved) to assess for themselves the value of that which they are to be told, or that which it is proposed to tell them: the court will not substitute its own view of value.

[75]Ultimately, the issue is whether or not the purpose is a proper one, and it is for the court, in any given case, to consider and weigh all relevant matters in its evaluation, bearing in mind the (potentially competing) interests and rights protected by the statute. Timing

[76]Also in issue between the parties was the point in time at which the propriety of the requesting party’s purpose ought to be evaluated. Litani’s case was that it ought to be assessed as at the point in time when it was made, on 30 September 2024; Aviva’s was that it ought to be assessed as at the date of the hearing, on 14 November 2025. In my judgment, in this respect, Aviva’s argument was correct, for the following reasons. 76.1. First, at section 117(3), the statute requires the court to decide whether access “is not sought for a proper purpose” (emphasis added) – the use of the present tense indicates that the court’s assessment is of the purpose as at the date of the decision, not the date of the request: at the time of the hearing, the requesting party is continuing to seek access, and so it is at that time that his purpose in doing so is evaluated. 76.2. Second, where it is, for example, as I have explained, an offence to seek access on misleading or false grounds, and where the company is subject to the possibility of claims and fines under the GDPR, it would be surprising, in the face of evidence before the court that information was to be used for an improper purpose, were the court to have to order a company to give access and thus to override its members’ rights, merely because historically, when made, the request was validly made. 76.3. Third, whilst I accept that it might in consequence be possible for a company to react or take some step, between the receipt of the request and the date of the hearing, to render a request no longer proper, that is not a point of any real concern in this respect: if a request for some reason, at some point, loses its force or utility, or becomes wholly improper, it ought not to be pursued any further, let alone pursued to a hearing. If appropriate, the requesting party can be compensated in costs.

[77]I respectfully acknowledge that in Sir Henry Royce Memorial Foundation v Hardy

[2021] BCC 705

, HHJ Paul Matthews considered this issue, and said, at [50]:

“I must judge the propriety of the request at the time that it was made, and not as at the time of the hearing at which that propriety is actually argued and thereafter considered: Fox-Davies, [37].”

[78]As to that, I agree with Mr Moore, first that the judge’s comments were obiter, and also that the reference to [37] of Burberry does not appear to relate to the stated proposition (which was not otherwise considered or in issue in Burberry). Be that as it may, in the present case, whether propriety is to be assessed as at the date of hearing (as I consider to be correct in principle) or as at the date of the Request, my decision would not be different: the outcome is or would be the same.

[79]Having considered the applicable principles, I turn to the evidence. Litani and the Proposed Offer: the Evidence

[80]The parties’ evidence comprised: 80.1. the first, second and third witness statements of Susan Kuczynska, Aviva’s Company Secretary; 80.2. the first witness statement of Peter Lindborg, a partner at Lindborg & Mazor LLP, in California; 80.3. the first, second and third witness statements of James Sing, Litani’s “Operations Manager”; 80.4. the first witness statement of Claire Smyth, Litani’s “Head of Settlements”; and, 80.5. the first witness statement of Russel Shear, a Partner and Head of the Corporate Group at Edwin Coe LLP (Litani’s solicitors). It is important in the determination of the present application, and important therefore in considering that evidence (and its relevance), to hold firmly in mind that the issue concerns the propriety of Litani’s purpose (in the broad sense explained in the authorities and above) and that the onus is on Aviva: that is the focus of the court’s inquiry. As I have said, the test is not one of good character or desirability of outcome, or whether Litani is a proper and reputable person, well thought of and efficiently and transparently operated; those matters are not relevant (unless of course they bear on the identification of its true purpose, or on its ability in fact to pursue that purpose); as was made clear in Burberry, the court’s decision does not depend on a broad consideration of all and any connected circumstances. “Mini-Tender Offers”

[81]Nonetheless, as to the wider context of the present case, I was told by counsel for Aviva that if the proposed offer were to be made and pursued by Litani, it would (at least as far as they, and Aviva, were aware) be the first “mini-tender” offer of its kind made to UK resident shareholders of an entity listed on the main market of the London Stock Exchange, and that offers of this sort have caused some regulatory “concern” in other jurisdictions.

[82]Thus, in Ms Kuczynska’s first statement, she said that in the United States, the SEC has found that ““mini-tender” offers – offers for less than five percent of a company's stock – can be the subject of numerous fraudulent practices” and that the SEC has considered the practice of “mini-tender” offers in guidance entitled “Mini-Tender Offers: Tips for Investors”. That guidance (“the SEC Guidance”) states, amongst other things, that “mini-tender” offers:

“have been increasingly used to catch investors off guard. Many investors who hear about mini-tender offers surrender their securities without investigating the offer, assuming that the price offered includes the premium usually present in larger, traditional tender offers. But they later learn that they cannot withdraw from the offer and may end up selling their securities at below-market prices.”

[83]The SEC Guidance further states:

“Some bidders make mini-tender offers at below market prices, hoping that they will catch investors off guard if the investors do not compare the offer price to the current market price. Others make mini-tender offers at a premium – betting that the market price will rise before the offer closes and then extending the offer until it does or improperly cancelling if it doesn't.”

[84]Whilst the SEC’s concerns are doubtless genuine, and whilst they may well be shared by regulators elsewhere, including in the UK, it is not for the court - and certainly not for this court on this application (as was acknowledged on Aviva’s behalf) - to express a view about the desirability or otherwise of mini-tender offers, or to seek in some way to control or manage their use or permitted features - that would be to trespass on the territory of others - policymakers and regulators. Suffice to say that as matters now stand, mini-tender offers are not as such unlawful in the UK, or subject to specific regulatory control; in any event, and more to the point, there was no suggestion that (however characterised, and whether or not desirable as a feature of the investment landscape) Litani’s proposed offer would itself be unlawful or that an offer in the terms contemplated would be inherently improper.

[85]Nonetheless, and despite that acknowledgement, Ms Kuczynska concluded in her first statement - based in part explicitly on the passages recited above and the concerns of the SEC raised in the US - that, “I and the Company consider that Litani’s Offer has been designed to catch vulnerable retail investors “off guard”.” At the hearing, it was not clear to me that Aviva’s case went quite that far – there was no allegation of an offer deliberately designed by Litani to exploit the vulnerable (as opposed to an allegation, expressed in terms of a “concern”, that only the vulnerable, foolish or ill-advised would accept the proposed offer, despite its clarity, there being no rational reason otherwise to accept it). There was no factual evidence about Aviva’s shareholders in particular, or their sophistication, vulnerability or otherwise. Further, I accept that Litani intends to communicate its offer to members based on the number of shares they hold, not because they might be “vulnerable” – a fact or possibility about which Litani would not have any real knowledge.

[86]There was therefore I think some internal tension discernible in Aviva’s case: on the one hand, an acknowledgement (properly made) that it is not for the court to regulate or assess the desirability (and therefore the risks and/or advantages) of mini-tender offers as such, but on the other, a case based on a concern, explicitly stated, that Litani proposes to make an offer in fact comprising a mini-tender offer, and that such an offer renders its purpose (under section 117) not proper (or is relevant to that conclusion, and supports it) because it entails a risk that only the unwary would accept, given the available (better, or equally good) alternatives, explained below.

[87]Aviva’s concerns in this respect were said to have been compounded by reference to other matters, including the circumstances surrounding the offer made by Litani for shares in Sun Life Financial Inc (“Sun Life”) in July 2024 (and referred to in the Request as having been made on terms “substantially similar” to those contemplated in respect of Aviva’s members).

[88]In her first statement, Ms Kuczynska referred to “warnings” issued by Sun Life cautioning shareholders against engaging with such offers from Litani, Obatan LLC (“Obatan”) and New York Stock and Bond LLC. She said that Obatan had been, and may still be, the subject of a nationwide investigation by the SEC (in the US) in respect of its “sales practices”, and whether or not it was violating US securities laws when making offers to purchase securities from US residents. She pointed out the possibility of connections between Litani and Obatan: both instruct Edwin Coe solicitors, and from information available on the State of Delaware Division of Corporations website, both use the same registered agent and address, being Harvard Business Services Inc., 16192 Coastal Highway, Lewes, Delaware 19958, County of Sussex, United States.

[89]In the statements that followed, there was further evidence concerning: Litani’s ownership, management, and its relationship with Obatan; Obatan’s own practices and involvement with the SEC; and the Sun Life offer. Some of that evidence strayed into the irrelevant, but having considered it, I have reached the following conclusions. Litani’s Ownership & Structure

[90]First, Obatan and Litani are indeed - it was admitted - under common ownership. Litani has however chosen to reveal nothing of any real substance either about the nature or identity of that ultimate “ownership”, or even about the identity of its directors and officers (Mr Sing is “Operations Manager”, responsible for the “day-to-day administrative functions of Litani’s London office” and Ms Smyth is “Head of Settlements”); it does not have a website, and its address in London is a co-working space at 65 Alfred Road, London W2 5EU, within which (I accept) it rents a separate lockable office; its registered office in Delaware has not been given. Litani’s case was that these withheld details are irrelevant, and, as would the Aviva offer in due course, the Sun Life offer had disclosed Litani’s incorporation details, physical office address, and phone and email contact details.

[91]I agree with Aviva that Litani has not been - indeed, has chosen not to be - transparent about its ownership, and about its (or its associates’) broader operations and management. I shall deal below with the relevance of those circumstances, but as I have said, holding in mind the issue to be decided in respect of the propriety of its stated purpose in respect of Aviva’s membership. The SEC’s Concerns about Obatan

[92]Second, I do not accept that the evidence of Mr Lindborg (who appears to have been Obatan’s secretary, as well as a partner at Lindborg & Mazor LLP, its attorneys) fully described the extent of the SEC’s concerns or allegations about Obatan. His evidence, in short, was that the narrow issue between Obatan and the SEC concerned the production of documents by Obatan in the context of an informal inquiry conducted by the SEC into mini-tender offers; that Obatan had complied with the SEC’s requests apart from their requests for “internal documents unrelated to the transactions” in issue; and that it was because of that failure (alone) that the SEC had made a formal application against Obatan – an “administrative subpoena” – opposed by Obatan and as yet unresolved.

[93]However, in her second statement, Ms Kuczynska explained that the SEC’s concerns had gone further – they had, for example, in February 2023, issued an “Order Directing Private Investigation and Designating Officers to Take Testimony” stating that “the Commission has information that tends to show” that Obatan may be “in possible violation” of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 and Section 14(e) of the Exchange Act and Rules 14e-1 and 14e-8. Furthermore, that the SEC had sought bank and brokerage documents because they “could reveal if Obatan paid investors less than the purchase price promised or whether Obatan delayed making payments to investors, both fraudulent practices”, and that ultimately, “The efforts that Messrs. Lindborg, Armour, and Yiu have gone to avoid the SEC’s scrutiny heightens the SEC’s concerns about the legality of business they have and are conducting.”

[94]Plainly, those were not issues capable of being resolved (or capable even of being more fully understood) on the evidence before the court on the present application: the SEC appears to have concerns about Obatan, possibly serious concerns, in the US (and relative therefore to US law); those concerns are, it appears, denied, but may be justified; Obatan and Litani are connected. At most, those circumstances would justify Aviva’s and the court’s close scrutiny of the terms and (in the event, unchallenged) legality of Litani’s proposed offer, and of its means of executing its proposal, and in particular, of meeting its payment obligations, if any arise, to those who might agree to sell their shares. The Likelihood of an Offer & of Litani’s Ability to Pay

[95]As to the latter point, in the Request, Litani stated that it intends to make an offer to “all shareholders other than those shareholders which appear to be institutional shareholders, those shareholders which it considers have an unusually large or small shareholding and those shareholders who are registered on the Aviva Share Account”.

[96]Whilst not a precise description of the proposed class of offerees, and whilst Litani (despite Aviva’s requests) has not explained exactly what was meant by “unusually large or small”, that description was both reasonably comprehensible and workable; more to the point, in my view, it was unobjectionable in this context: the identification and propriety of Litani’s purpose (including its proposed terms) was not affected or borne upon by any absence of precision in this respect. It was not in issue that however ultimately identified, most, indeed the vast majority of Aviva’s shareholders would fall outside the class of intended offerees, and will not receive an offer.

[97]Further, and again as stated in the Request, Litani intends to provide for a maximum rate of acceptance, set at no more than 1% of Aviva’s issued share capital. In Mr Sing’s first statement, he confirmed that the maximum amount payable by Litani will be lodged with Zedra before any offer is made. As to the source of that sum, Litani has not provided any detail (perhaps in common with Obatan, in the US). As to its amount, in correspondence, its solicitors told Aviva’s solicitors, by letter dated 16 January 2025, that Litani intended to buy “approximately £2.5 million of shares”; by letter dated 6 February 2025, the amount had increased to £10 million (albeit without explanation of that fourfold increase). In any event, in whatever sum, Mr Shear explained in his evidence that it is “a pre-condition of the authorised person's (S.P. Angel Corporate Finance LLP), engagement to provide approval of the document for the purpose of Section 21 of FSMA that it would only be able to provide such approval if a reputable paying agent was prepared to enter into a Paying Agent Agreement whereby Litani would deposit in Zedra's account the fullamount of the offer price for the shares it was seeking to acquire, assuming full take up”.

[98]In Mr Sing’s second statement, he explained that the total estimated cost to Litani of making the proposed offer is £782,500, and that in making the proposed offer, it will be exposed to the commercial risk of loss.

[99]In the circumstances, it was suggested on behalf of Aviva that there was a real risk that having been given access to the register, and having acquired the information sought, Litani would at that point - only then having carried out an economic analysis of the likely outcome (and perhaps in light of the SSDS now in operation) - decide against making any offer at all, in which case access would have served no purpose, and certainly not a proper one.

[100]During the hearing before me, in order to meet this objection, Mr Thornton offered an undertaking, to be given to the court by Litani, that if given access to the register, it will (certainly) make an offer in accordance with the description contained in the Request and evidence.

[101]As a result of that proposed undertaking, and of the evidence described, I am satisfied: 101.1. that if access to the register were to be given, a purchase offer will be made, albeit only to a certain, comparatively small group of Aviva’s shareholders to be more precisely identified by Litani after access, in accordance with the terms of the Request; and, 101.2. that before it is made, such an offer will be backed by the deposit of a sum with Zedra, sufficient to meet the maximum extent of Litani’s possible liabilities to shareholders; 101.3. but that Litani has chosen not to explain either the source of that sum, or its precise amount, both of which therefore remain unknown (but in neither respect in breach of any identified disclosure obligation). The Sun Life Offer

[102]Ms Smyth’s evidence was that the Sun Life offer was dated 18 July 2024, with a closing date of 5 November 2024; that it was made to UK resident shareholders of Sun Life; that it was posted to 19,191 Sun Life shareholders resident in the UK for consideration; and that as at 30 October 2024, Litani had received 582 acceptances (including from various classes of professionals presumably comparatively sophisticated in their understanding of such matters), being 3.03% of the number of posted offers; she said that only one complaint had been received, and she recited various expressions of customers’ gratitude. None of that was challenged.

[103]Mr Sing’s evidence (which I accept) was that whilst Sun Life had issued a “warning” about Litani’s offer, it was no more than that it did “not recommend” it – Sun Life was not critical of the offer and simply advised shareholders that they were not required to respond to it, but if they were minded to do so, should first consult with their investment advisor. I was told that Aviva would, if Litani were to make its proposed offer, similarly “send a communication to its shareholders containing appropriate warnings about Litani’s offer”, although not what those “warnings” would contain.

[104]Concerning the Sun Life offer, and Litani’s evidence of its conduct and outcome: 104.1. I do not consider it to be realistically possible to draw from it any firm conclusions regarding the likely rate of success, or otherwise, of the proposed Aviva offer, or the extent of its appeal to Aviva’s shareholders. I accept, as explained by Ms Kuczynska, that the differences between the companies mean that a simple comparison is not really possible – in particular,(i) that the terms and circumstances of Sun Life’s demutualisation were different from those of Aviva, meaning that Sun Life had UK resident shareholders, despite being a Canadian incorporated entity whose securities were no longer traded on the London Stock Exchange, and had not been traded been for nearly 25 years, and

(ii) that in relation to Sun Life, the process of replacing lost share certificates is more onerous (and is therefore a process in respect of which shareholders might more readily need or welcome assistance). 104.2. However, I do draw from the evidence the conclusion that Litani is a company which has recently, within the last year or so, successfully made and executed, without any highlighted difficulty, and without attracting any criticism (brought to the attention of the court) an offer to buy shares from a reasonably substantial number of a demutualised company’s members, at a discounted price; in other words, that it has the practical capacity to do as it says it will. Litani’s Proposed Terms & Processes, & a Comparison with those of Computershare

[105]Otherwise, as to the terms of the proposed offer, Aviva’s case was not that they lacked clarity, or would not be properly explained in the documents to be sent to shareholders; as I have said, it was not Aviva’s case that the proposed offer would be unlawful in any way; instead, essentially, it was that Litani’s proposed service would be no more convenient than Aviva’s, but would be much more expensive, meaning that “any sensible shareholder” would prefer to deal with Computershare, and by implication, that only those to some degree vulnerable, foolish or unwary would do otherwise, despite it being against their interests.

[106]As to lawfulness, and regulatory approval: 106.1. First, the Litani Sun Life offer was approved by S.P Angel Corporate Finance LLP (“Angel”), a UK firm authorised and regulated by the Financial Conduct Authority (“the FCA”). The purpose of that approval was, essentially, to ensure, on behalf of Litani, that the promotion was fair and not misleading and was likely to be properly understood by recipients. Litani’s evidence (which I accept) was that in the same way, as stated in the Request, an offer to Aviva’s shareholders will proceed only if similarly approved. 106.2. Second, Mr Shear’s evidence was that having spoken (more than once) to a case officer (Mr Tom Grace) at the Panel on Takeover and Mergers, he had been assured by Mr Grace (apparently following discussion by a Committee of the Panel) that the Takeover Code would not apply to Litani’s proposed offer in respect of Aviva, being a proposed “mini-tender” offer outside the scope of Appendix 5 of the Takeover Code, and not therefore in need of any exemption from its provisions (consistent with what I said above at [81]-[85]). Further, at the request of Mr Grace, Mr Shear also spoke to Ms Helen Boyd, at the FCA, and had been told by her that provided the financial adviser who would be providing the approval under Section 21 of the Financial Services and Markets Act 2000, was cognisant of the consumer duty regulations, the FCA would have no relevant concerns. Whilst in response, Ms Kuczynska commented that the FCA had not therefore expressed a view regarding the terms and conditions of Litani’s proposed offer “as a whole” (which must I think be correct) Mr Shear is a partner and Head of the Corporate Group at Edwin Coe, and I accept his evidence.

[107]In the circumstances, it appears that the proposed offer would, if made in accordance with the terms set out in Litani’s evidence, be compliant with applicable regulatory requirements. Included as one of the proposed features of the offer was that it will state, in bold font, that it is an offer to purchase shares at a discount to market value (in connection with the Sun Life offer, that statement was printed in both the cover letter sent to shareholders, and also in the offer circular – Mr Sing’s evidence was that the documents proposed in connection with Aviva “will be substantially similar”).

[108]As to the evidence of cost and convenience, there was no evidential issue of real substance: Aviva’s case was that Litani’s proposed service is (or would be) no more convenient than Aviva’s, but would be more expensive.

[109]Litani’s process operates through the post – indeed, Mr Thornton said that it was by reference to that feature that Litani sought in particular to distinguish its service. Computershare operates both an online and postal service. There is no very significant difference between the two alternative postal services. Both involve: 109.1. completing a form with basic information about the shareholder and the shares they wish to sell (though Litani only permits a shareholder to sell all their shares); 109.2. sending that form (either to Computershare directly or to Litani); and, 109.3. waiting to receive payment.

[110]The are some differences: 110.1. First, in respect of access to the form. The Computershare share sale form is downloaded and printed from its website. It takes six signposted clicks from the Aviva corporate website to access the form (or seven from the Google search: “Sell my Aviva shares”). For those eligible for the SSDS, the relevant form is posted to shareholders directly, as is Litani’s form. 110.2. Second, in respect of completing the form. The Computershare form requires the shareholder to fill in their name, address, nationality, date of birth, bank account information and the number of shares to be sold, before posting it to Computershare. For this purpose, shareholders are required to provide their Shareholder Reference Number (“SRN”). The SRN is listed on all Computershare communications (for example, share certificates and dividend confirmations). It can also be obtained from Computershare on provision of two forms of identity (for example, name, address, bank account details or a signed letter). Computershare’s contact details are clearly listed on the form. 110.3. Litani’s form is very similar. If a shareholder does not know their SRN, then Litani will need to obtain the information necessary to acquire it from the shareholder, at some stage. There must then be communications between the shareholder and Litani, Litani and Computershare and (potentially) the shareholder and Computershare directly to effect the sale. 110.4. Third, in respect of payment. Under the Computershare process, payment is typically made within 10 working days. The time attributable to the additional steps in Litani’s process, would presumably cause its payment process to take somewhat longer.

[111]Both Computershare and Litani offer customer support: Computershare has substantial customer support resources; beyond Ms Smyth (“responsible for managing all aspects of enquiries received from shareholders by phone, email and post, and the processing of tender forms they submit”) the extent of Litani’s resources in this respect (if any) was not evident.

[112]Where retail shareholders have lost their share certificates, Ms Smyth’s evidence was that Litani assists, by guiding them through the replacement process. I accept however that all the same steps will be required to replace a lost share certificate under Litani’s process as are required under Computershare’s, and at the same cost; all the same information will be required from the shareholder; both Litani and Computershare offer customer support.

[113]The standard timing for a letter of indemnity and new share certificate to be issued under Computershare’s process is five days, though typically it is processed more quickly. Litani estimates that its share certificate replacement process under the Sun Life offer took 8-12 weeks in total, two weeks of which were specifically attributable to Litani’s conduct of the process. Fees

[114]It is in respect of fees (dealing fees in particular) that there is the greatest difference between Litani’s proposed offer and the process already available.

[115]In respect of lost share certificates, the indemnity fees are the same for Computershare and Litani, because Litani charges Computershare’s fees on top of the 17.5% market value discount. The only difference is that under the SSDS (which is unavailable to those who accept Litani’s offer), there is no such fee for holders of between 1 and 100 shares. Outside the SSDS, small shareholders would be charged up to £44.

[116]The dealing fees are as follows: 116.1. under the SSDS: nil for those with between 1 and 100 shares; £40 for those with between 101 and 1,500; 116.2. charged by Computershare (non-SSDS): 1.4% of the share value, subject to a minimum of £40; and, 116.3. charged by Litani: 17.5% of the share price.

[117]Over the past 12 months, Aviva’s share price has fluctuated between about £4.60 and £6.90. Taking a midpoint hypothetical share price of £5.75, counsel for Aviva produced a table which compared dealing fees as follows (the contents of the table, which I gratefully reproduce, were not challenged as such): Shareholding SSDS Computershare non-SSDS Litani Comparison (excluding SSDS) No. shares held Value of shares Fee % discount Fee % discount Amount of discount Which is cheaper? Difference 1 £5.75 Nil 0.00% £40.00 695.65% £1.01 Litani -£38.99 10 £ 57.50 Nil 0.00% £40.00 69.57% £ 10.06 Litani -£29.94 20 £115.00 Nil 0.00% £40.00 34.78% £ 20.13 Litani -£19.88 30 £172.50 Nil 0.00% £40.00 23.19% £ 30.19 Litani -£9.81 40 £230.00 Nil 0.00% £40.00 17.39% £ 40.25 Co’share £0.25 50 £287.50 Nil 0.00% £40.00 13.91% £ 50.31 Co’share £10.31 60 £345.00 Nil 0.00% £40.00 11.59% £ 60.38 Co’share £20.38 70 £402.50 Nil 0.00% £40.00 9.94% £ 70.44 Co’share £30.44 80 £460.00 Nil 0.00% £40.00 8.70% £ 80.50 Co’share £40.50 90 £517.50 Nil 0.00% £40.00 7.73% £ 90.56 Co’share £50.56 100 £575.00 Nil 0.00% £40.00 6.96% £100.63 Co’share £60.63 200 £ 1,150.00 £40 3.48% £40.00 3.48% £201.25 Co’share £161.25 300 £ 1,725.00 £40 2.32% £40.00 2.32% £301.88 Co’share £261.88 400 £ 2,300.00 £40 1.74% £40.00 1.74% £402.50 Co’share £362.50 500 £ 2,875.00 £40 1.39% £40.25 1.40% £503.13 Co’share £462.88 750 £ 4,312.50 £40 0.93% £60.38 1.40% £754.69 Co’share £694.31 1000 £ 5,750.00 £40 0.70% £80.50 1.40% £ 1,006.25 Co’share £925.75 1250 £ 7,187.50 £40 0.56% £ 100.63 1.40% £ 1,257.81 Co’share £1,157.19 1500 £ 8,625.00 £40 0.46% £ 120.75 1.40% £ 1,509.38 Co’share £1,388.63

[118]By reference to that table, I accept that as was said on behalf of Aviva: 118.1. the SSDS is in every instance cheaper than Litani’s proposed offer; 118.2. the Computershare non-SSDS service is cheaper than Litani’s for any shareholder holding 40 shares or more. It is not known, because Litani has not said, whether 40 shares will be below the threshold of what it describes as “unusually small”; for Aviva it was suggested that simple mathematics would suggest that Litani is in fact very unlikely to approach any shareholders with fewer than 40 shares, because it would make an insufficient margin on the trade (at £5.75/share, Litani would make about £1 on each share; Litani has indicated that it intends to make its offer to 200,000 shareholders; if 3% accept the offer (as was the case for Sun Life), then in order to cover its costs of (about) £782,500, Litani would need to acquire about 782,500 shares. So (dividing 782,500 by 200,000), Litani would need to acquire an average of 130 shares from each shareholder who accepts the offer) – there was force in that suggestion; 118.3. the economic difference between the services is not (certainly not in every case) insubstantial: for those holding 100 shares, the difference in the cost of sale (£60.63) would be c.10% of the share value; for those holding 300 shares, it would be c.15% (£261.88). Discussion

[119]Having considered both the principles and the evidence, I return to the question before the court: has Aviva shown that access to its register of members is not sought by Litani for a proper purpose, assessed as at the date of the hearing? In my judgment, it has not, for the following reasons.

[120]First, the Request itself, stated at [1] above, was compliant with the provisions of section 116(4) of the CA 2006.

[121]Second, the court’s focus is on the propriety of Litani’s purpose, which is to make an offer in the terms explained above. As to that purpose: 121.1. the offer would be made to Aviva’s shareholders in their capacity as such; it would not be an offer wholly unrelated to Aviva, or to the offerees’ membership of Aviva; 121.2. for the reasons explained above at [95]-[101], I am satisfied that if access is granted, the proposed offer will be made, and I am satisfied that if made, then to the extent accepted, it will be honoured by Litani; 121.3. although Litani proposes to make an offer for reasons avowedly commercial, that is not in itself a ground on which to deny it access to the register; 121.4. it was not suggested that the proposed offer would be unlawful, misleading, or inherently improper; its terms will be explained to members; they will be free to assess it, and accept or decline it; indeed, they will be free to escape from their acceptance of it within a 14 day cooling-off period, should they come to regret their decision; to the extent applicable, the offer would be compliant with regulatory requirements; Aviva’s members would not be made subject to harassment or vexatious conduct – Litani’s offer would be made to them in writing, and sent to them by post; 121.5. whilst I accept – indeed, it was common ground – that acceptance of Litani’s offer would be economically disadvantageous to any person accepting it (by comparison with the preferable terms available through Computershare, taking into account the SSDS) I do not consider that it would be, in itself, commercially exploitative, oppressive or immoral to make an offer in the terms proposed by Litani; in my judgment, the offer and its terms are plainly within the limits of the commercially acceptable; 121.6. I also accept that Litani’s proposed service is no more (or at most, not much more) convenient than those now provided by Computershare (in particular, since the introduction of the SSDS, conducted by post) and may well be less so; 121.7. however, the fact that Litani’s service is or may be more expensive, and may to some degree, in certain respects, be more or less convenient than those currently available, does not affect, or undermine, the propriety of its purpose - the fact that a better deal is available elsewhere does not compel the conclusion that Litani’s purpose is “not proper”; on Aviva’s case, Litani’s purpose would not be proper even if it were a highly reputable company providing a service only very slightly more expensive than that provided by Computershare (perhaps even if its service was identical, but therefore “pointless”) - that conclusion would seem to me to distort the language of the Act; if anything, the provision through Computershare of similar services would tend to support, rather than undermine, the conclusion that Litani’s purpose is a proper one; the point of the Act is to prevent the pursuit of purposes held not to be proper; it is not to eliminate all but the most economically advantageous commercial choice (an assessment and comparison which in any event the court - and indeed the company - would often find difficult or impossible to conduct, certainly within 5 working days); 121.8. neither is Litani’s proposed service in itself of no conceivable benefit to offerees/members, as was the case in Burry & Knight (combined by the Registrar in that case with a finding that Dr Knight was mischief-making, in pursuit of a family vendetta with which he had become “sadly obsessed”): it is not of no conceivable value to sell shares, even if a better price might obtained by other means; it is for the shareholders to decide for themselves how to realise the value of their own property, if that is what they wish to do; it is for shareholders to assess the value of the offer received and compare it with alternatives; it may be that none or only a small number will accept (in which case, it would suffer a loss) but again, I do not consider that to affect the propriety of Litani’s purpose; 121.9. it is proposed to make the offer to a relatively small subsection of Aviva’s members, meaning that in consequence, most members’ data will have been disclosed to no productive end; however, as to that:(i) there was nothing positively to suggest that their data would be misused or further (and wrongfully) disclosed; and

(ii) I do not consider that the propriety of Litani’s stated purpose - to make an offer to certain members only - is affected, or undermined, by the fact that they will at the same time gain access to information about others which it will not use productively; in any event, Litani offered, through counsel, an undertaking to return and delete from its records that (unused) data in due course; 121.10. in all the circumstances, I do not consider that to allow Litani to have access to the register in order to facilitate the proposed offer would be harmful to the interests of Aviva’s members.

[122]Third, whilst I accept (as explained above at [90]-[91]) that Litani’s ultimate ownership and broader operations have (deliberately) not been made known, and whilst I accept that there are, or appear to be, outstanding, unresolved concerns about the operations of Obatan and perhaps other associated entities in the US, none of that affects the propriety of Litani’s stated purpose in respect of Aviva, or (as I have said) its ability to pursue and lawfully execute that purpose; the test is not one of good character; the requesting party does not have to prove itself to be a proper person; the court cannot find a person’s purpose to be not proper based on unresolved doubts about its associates or broader operations.

[123]Finally, I have considered above, at [81]-[86], the fact of concerns having been raised by regulators about mini-tender offers such as (or such as similar to) that proposed by Litani (including in connection with Obatan, in the US). However, as I have said, whilst those concerns may well be genuine, it is not for this court on this application to express a view about the desirability or otherwise of such offers, or to seek in some way to control or manage their use or permitted features: as matters now stand, mini-tender offers are not as such unlawful or subject to specific regulatory control.

[124]In those circumstances, and for all the reasons explained, I am not satisfied that access to the register is not sought by Litani for a proper purpose. I will therefore dismiss Aviva’s application. Dated 1 December 2025

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