“PART 1 INTERPRETATION AND LIMITATION OF LIABILITY 1 Defined terms 1.1 In these Articles, unless the context requires otherwise: […] Charge means a mortgage or other security on or over securities including any Encumbrance; […] Encumbrance means any interest or equity of any person (including any right to acquire, option or right of pre-emption) or any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, title retention or any other security agreement or arrangement; […] Principal Shareholder means any person who, together with his Permitted Transferees, has at any time become the holder of Ordinary Shares representing not less than 9 per cent of the total issued Ordinary Shares (Initial Threshold) and either, together with his Permitted Transferees, (i) continues to hold Ordinary Shares representing not less than 5 per cent of the total issued Ordinary Shares (General Threshold) or (ii) continues to hold Ordinary Shares representing less than 5 per cent but holds any Ordinary Shares (Limited Threshold) or a person, together with his Permitted Transferees, who has received a transfer of Ordinary Shares from a Principal Shareholder (including from his Permitted Transferees) where the Ordinary Shares transferred qualify the transferor(s) as a Principal Shareholder; […] Privileged Relation has the meaning given in Article 49.1.2; […] APPOINTMENT AND TERMINATION OF APPOINTMENT OF DIRECTORS […] 20 Methods of appointing Directors 20.1 Any person who is willing to act as a Director, and is permitted by law to do so, may be appointed to be a Director: 20.1.1 by ordinary resolution, or 20.1.2 by a decision of the Directors, 20.1.3 for so long as a Principal Shareholder holds Ordinary Shares at or above the General Threshold, by notice in writing to the Company to appoint one person as a director […] 48 Transfer of shares – general 48.1 In these Articles, a reference to the transfer of or transferring shares shall include any transfer, assignment, disposition or proposed or purported transfer, assignment or disposition; 48.1.1 of any share or shares of the Company; or 48.1.2 of any interest of any kind in any share or shares of the Company; or 48.1.3 of any right to receive or subscribe for any share or shares of the Company. 48.2 The Directors shall not register the transfer of any share or any interest in any share unless the transfer is made in accordance with the applicable requirements of Article 49 (Permitted Transfers), Article 50 (Voluntary Transfers), Article 51 (Compulsory Transfers), Article 52 (Drag Along), Article 53 (Tag Along on acquisition of a Controlling Interest), Article 54 (Partial Tag Offers) and Article 62 (Compulsory Transfers of Growth Shares) and, in any such case, is not prohibited under Article 51 (Prohibited Transfers). […] 49 Permitted Transfers 49.1 For the purposes of this Article: 49.1.1. the expression “Family Trusts”, as regards or in relation to any particular individual member or deceased or former individual member, means trusts (whether arising under a settlement, declaration of trust or other instrument made or under a testamentary disposition or an intestacy) under which the only beneficiaries are that individual or the Privileged Relations of that individual or any charitable entity, and for those purposes a person shall be deemed to be beneficially interested in a share if the share or the income on it is or may become liable to be transferred or paid or applied or appointed to or for the benefit of such person or any voting or other rights attaching to it are or may become liable to be exercisable by or as directed such person pursuant to the terms of the relevant trusts or in consequence of an exercise of a power or discretion conferred by it on any person or persons; 49.1.2 the expression “Privileged Relation”, as regards or in relation to any particular individual member or deceased or former individual member, means and includes the husband or wife or civil partner or any parent of such husband or wife or civil partner or the widower or widow or surviving civil partner of the individual or any parent of such widower or widow or surviving civil partner of the individual and all the lineal descendants and ascendants in direct line of the individual and the brothers and sisters of that individual and their lineal descendants and a husband or wife or civil partner or former husband or wife or civil partner or widower or widow or surviving civil partner of any of the above persons, and for those purposes a step-child or adopted child or illegitimate child of any person shall be deemed to be a lineal descendant of such person and of the lineal ascendants of such person; […] 49.2 The Ordinary shares may at any time be transferred without being subject to the requirements set out in Article 50 (Voluntary Transfer) 49.2.1 by any individual member (not being in relation to the shares concerned a holder of them as a trustee of any Family Trusts) to a Privileged Relation of such member; or 49.2.2 by any such individual member to trustees to be held upon Family Trusts related to such individual member; […] 49.2.7 by any member to another person as security pursuant to the terms of a Charge; or 49.2.8 with the consent in writing of all the Principal Shareholders (which consent may be unconditional or subject to any terms or conditions and in the latter case any share so transferred shall be held subject to such terms and conditions) to any person. […] 49.5 Where Ordinary Shares have been transferred under Article 49.2.7, upon release of the Charge pursuant to which they were transferred or upon any proposed exercise of a power of sale pursuant to such Charge, it shall be the duty of the holder to notify the Directors in writing that such event has occurred and (unless the Relevant Shares are then transferred to the member from whom such Ordinary Shares were transferred pursuant to the Charge or a Permitted Transferee thereof (other than a Permitted Transferee pursuant to Article 49), any such transfer being deemed to be authorised under the foregoing provisions of Article 49) the holder shall be bound to give a Transfer Notice (as defined in Article 50.1) in respect of the Relevant Shares. […] 50 Voluntary Transfers 50.1 Any member who wishes to transfer any Ordinary Share, B Ordinary Share or other share (Seller) other than pursuant to a Permitted Transfer shall before transferring or agreeing to transfer such Ordinary Share, B Ordinary Share or share or any interest in it, serve notice in writing (Transfer Notice) on the Company of his wish to make that transfer. […] 50.9 The Directors shall no more than ten working days after: 50.9.1.1. the Sale Price has been agreed or determined in the case of Sale Shares other than Principal Sale Shares, give an Offer Notice in respect of such shares to all Ordinary Shareholders and B Ordinary Shareholders (other than the Seller) in accordance with these Articles; or 50.9.1.2. the service of the Transfer Notice in respect of Principal Sale Shares, give an Offer Notice (First Principal Shares Offer Notice) in respect of such shares to all Principal Shareholders (other than the Seller) in accordance with these Articles. For the avoidance of doubt, no Sale Shares may be offered or sold to any transferee pursuant to Article 50.15 or 15.18 unless an Offer notice has first been given to those Ordinary Shareholders and B Ordinary Shareholders entitled to receive the same hereunder in accordance with the pre-emption provisions set out in this Article and Articles 50.10 to 50.14 inclusive.”
“49.6 Where Ordinary Shares have been transferred under Article 49.1.2 to a husband or wife or civil partner of the particular individual member or former individual member referred to in Article 49.1.2 or any parent of such husband or wife or civil partner (whether directly or by a series of transactions under Article 49) and such husband or wife of civil partner ceases to be married to, or in civil partnership with (as the case may be), the relevant individual, other than by reason of death of such individual, then it shall be the duty of the member which is the former husband, or wife or civil partner or parent of any such person to notify the Directors in writing that such event has occurred and such member shall (unless the relevant shares are then transferred to a Permitted Transferee of the particular individual member or former individual member referred to in Article 49.1.2) be bound to give a Transfer Notice in relation to the Ordinary Shares held by such member.”
“Turning to the offer of shares, Mr Fane is seriously interested in exercising his pre-emption rights as a Principal Shareholder. But there are three practical difficulties. The first is that, pending the appointment of Mr Rajani, Mr Fane has not had access to the board papers, including, for example: (i) up-to-date management accounts, including a profit and loss account, a balance sheet, a cash flow forecast and a one-year projection showing the anticipated position at the end of the year, including budgeted overhead; (ii) a business plan for the current and, if available, next financial years; (iii) draft statutory accounts for the financial year ended31 December 2020 ; (iv) a projected outcome statement in relation to the CVA; (v) a detailed loan data tape, including provisions (if any), and a schedule of any off-balance sheet assets and liabilities; (vi) a detailed note relating to investments in other companies, including numbers of shares owned at present, current valuations and supporting information and documents. The second difficulty is that the notice provisions in relation to the pre-emption rights have been implemented at a time when Mr Fane’s Principal Shareholder status is said to have been “suspended”
“28.1 it is averred that by reason of the matters set out in paragraph 26 above, the provision of substantial historic information from1 January 2019 to October 2020, when the company voluntary arrangement for WF was entered into, would be pointless and oppressive and that no order for specific performance in this respect should be made; 28.2. the Company is willing and able to provide to the Claimant such information within clause 11.2 from November 2020 that is relevant and has been produced. For example, no management accounts were produced from about October 2020 to the end of December 2022, although there are audited accounts for the years ended31 December 2020 and31 December 2021 . The Company has resumed producing management accounts from January 2023 and, depending on the capacity of its accountant, it is the Company’s intention for these to be produced on about a 6 monthly basis; 28.3. in the premises, no order should be made as claimed in paragraph 34.”
“By notice dated16 January 2023 addressed to the Company and the Company’s Principal Shareholders (the “16 January Notice”), the Claimant sought the appointment of Mr Pankaj Rajani as his Nominated Director of the Company. The 16 January Notice, a copy of which appears at Annex F to these Particulars of Claim, was sent under cover of the letter from RSCo [the Claimant’s solicitors] dated17 January 2023 , addressed to the Company and its Principal Shareholders.”
“The principle remains that an admission may be express or implied but must be clear (Ellis v Allen[1914] 1 Ch. 904 at [909]; Ash v Hutchinson & Co (Publishers) Ltd[1936] Ch. 489 at [503]; Technistudy v Kelland [1976] 1 W.L.R. 1042; Murphy v Culhane [1977] Q.B. 94). Where the defendant admits a document but does not admit that its terms are fully or correctly pleaded, the claimant may obtain judgment if the document, on production, clearly establishes the claim (Barnard v Wieland (1882) 30 W.R. 947; but see Rutter v Tregent (1879) L.R. 12 Ch.D. 758 and Smith v Davies (1885) L.R. 28 Ch. D. 650).”
“Some guidance on the courts’ likely approach may be derived from cases under the old Pt 14. For example, in Akhtar v Boland[2014] EWCA Civ 872 it was held that where a defence contains an admission of part of a claim, the claimant is entitled to judgment on that admission. However, if the admission was equivocal or inconsistent with other parts of the defence, the claimant could seek clarification by way of a Pt 18 request or the judge could ask for clarification at a hearing.”
“In Abaidildinov v Amin[2020] EWHC 2192 (Ch) the court (Judge Robin Vos) considered the proper approach to deciding whether summary judgment should be granted where the relief sought was a declaration. The court could give summary judgment where the defendant had no real prospect of successfully defending the claim or issue; “claim or issue”inCPR r.24.2 (a)(ii) referred to the underlying facts or matters which were the subject of the declaration. However, once it was shown that the defendant had no real prospect of showing that those matters were wrong, the court should exercise its discretion as to whether to make the declaration in the normal way, not by reference to the summary judgment test.”
“i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All E.R. 91; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] F.S.R. 3; vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“Whether evidence can reasonably be expected to be available at trial”: “In Okpabi, [Okpabi v Royal Dutch Shell Plc[2021] UKSC 3 ; [2021] Bus. L.R. 332] at [127]–[128] Lord Hamblen JSC stated that the correct approach, when asking whether the position might change from how it appears at the summary judgment stage, was not to ask whether there was: “… a clear prospect that new material will become available before the trial which is likely to give the claimants a real prospect of success” but rather to ask whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success. In King v Stiefel[2021] EWHC 1045 (Comm) Cockerill J held as follows: “21. The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial. “… a clear prospect that new material will become available before the trial which is likely to give the claimants a real prospect of success” “21. The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial. 22. So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up.”
“14. Easyair principles (vi) and (vii) contain echoes of the law’s traditional disapproval of ‘a desire to investigate alleged obscurities and a hope that something will turn up…’ as a basis for defending a summary judgment application; a case that is ‘all surmise and Micawberism’ will not do: see The Lady Anne Tennant v Associated Newspapers Ltd[1979] FSR 298 , 303 (Sir Robert Megarry V-C). The focus is not just on whether something more might emerge, but also – and crucially – on whether, if so, it might ‘affect the outcome of the case’; and the court’s task is to assess whether there are ‘reasonable grounds’ for believing that both these things would occur: see Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Company 100 Ltd[2006] EWCA Civ 661 ;[2007] FSR 63 , [18] (Mummery LJ). 15. As Mummery LJ warned in the Doncaster case at [10], on applications for summary judgment the court must be alert to ‘the defendant, who seeks to avoid summary judgment by making a case look more complicated and difficult than it really is’. But as he also said at [11], the court should beware ‘the cocky claimant who …confidently presents the factual and legal issues as simpler and easier than they really are and urges the court to be efficient…’. Efficiency is not a ground for entering summary judgment. Judgment without a trial may sometimes result in huge savings of time and costs; that would have been so in the hugely expensive litigation in Three Rivers District Council v Bank of England. But neither Part 24, nor the overriding objective, permits the court to enter judgment on the basis that the claimant has a strong case, the defence is not likely to succeed, and the time and costs involved in a trial are disproportionate to the potential gains. 16. The overriding objective of ‘deciding cases justly and at proportionate cost’ does have a role to play if the court concludes there is no realistic prospect of a successful defence, and the question arises whether there is ‘some other compelling reason’ for a trial. At that point, the court would be bound to have regard to considerations such as saving expense, proportionality, and the competing demands on the scarce resources (CPR 1.1 (2)(b), (c) and (e)). It is rare for the court to find a compelling reason for a trial, when it has concluded there is only one realistic outcome. The defendant has not suggested that this is such a case. My focus must be on whether it is realistic or fanciful to suppose the claims might fail at trial.”
“... The power to make declarations is a discretionary power. As between the parties to a claim, the court can grant a declaration as to their rights, or as to the existence of facts, or as to a principle of law (Financial Services Authority v Rourke [2002] C.P. Rep. 14 (Neuberger J)). When considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration (ibid.). ... ... In the several judgments delivered by the Court of Appeal in the case of Rolls-Royce Plc v Unite the Union[2009] EWCA Civ 387 ; [2010] 1 W.L.R. 318, CA, there are extended discussions of the power of courts to grant declaratory relief as a final remedy in the context of a claim proceeding under the CPR Pt 8 alternative procedure and raising issues under theEmployment Equality (Age) Regulations 2006 likely to affect persons other than the parties before the court. In succinctly stating and explaining the principles to be applied, Aiken LJ noted that the circumstances in which the court will be prepared to grant declaratory relief have been widened considerably in modern times (ibid. at paras 118 to 120). There is nothing in the general statements found in the modern authorities as to the general principles applicable that requires that a declaration may not be granted unless there is an actual or imminent threat to a legal right (Pavledes v Hadjisavva[2013] EWHC 124 (Ch) (David Richards J)). A declaration may be granted where the dispute relates to a legal right which might come into existence in the future (Milebush Properties Ltd v Tameside MBC[2011] EWCA Civ 270 ; [2012] 1 P. & C.R. 3, CA; and see Guide Dogs for the Blind Association v Box[2020] EWHC 1948 (Ch) , grant of declaratory judgment where a declaration was not available under theThird Parties (Rights against Insurers) Act 1930 ). Those authorities demonstrate a willingness by the courts in appropriate cases to make declarations as regards rights which may arise in the future or which are academic as between the parties, but the court may refuse a declaration on grounds of prematurity, or because it would serve no useful purpose (no practical utility) (Pavledes v Hadjisavva op cit). The matters to be taken into account by the court in considering the exercise of the discretion were summarised in Bank of New York Mellon, London Branch v Essar Steel India Ltd[2018] EWHC 3177 (Ch) (Marcus Smith J) at para.21. In that case the claimant’s (C) claim for a declaration against foreign defendants (D), who had taken no steps in the proceedings, to the effect that amounts were payable by D under a trust deed (that being the only remedy sought by C), was refused at a trial held in the absence of D. Matters particularly taken into account by the court were: (1) that both sides of the argument would not be put, (2) the potential effect of a declaration on a third party not before the court, (3) the existence of a real and present dispute, and (4) the potential for interference in a foreign process. ... In considering whether or not to grant a declaration as to the proper construction of a contract, the court should, at the very least, proceed with caution and in accordance with the principles referred to in the notes and authorities referred to above (Thomas Brown Estates Ltd v Hunters Partners Ltd[2012] EWHC 21 (QB) (Eder J), where held it was not an appropriate use of the court’s discretion to make a declaration as to the proper construction of a franchise agreement where the substantive issues had been agreed between the parties).” 40.20.3: “In Wallersteiner v Moir [1974] 1 W.L.R. 991, CA, the Chancery case of Williams v Powell [1894] W.N. 141, was cited as authority for the proposition that a declaration is a judicial act and ought not to be made on default of pleading, or on admissions of counsel, or by consent, but only if the court is satisfied by evidence. Buckley LJ explained (at p.1029) that this rule is “a practice of very long standing” (see also New Brunswick Railway Co Ltd v British & French Trust Corp Ltd [1939] A.C. 1, and Metzger v Department of Social Security [1977] 3 All E.R. 444, at p.451, per Megarry VC). In his lordship’s opinion, where relief is to be granted without trial, whether on admissions or by agreement or in default of pleading, and it is necessary to make clear on what footing the relief is to be granted, the right course is not to make a declaration “but to state that the relief shall be upon such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation”
“The court must be satisfied that all sides of the argument will be fully and properly put. It must, therefore, ensure that all those affected are either before it or will have their arguments put before the court. For this reason, the court ought not to make declarations without trial.”
“The Claimant seeks declaratory relief to clarify certain questions in relation to his rights under the SHA and the Company’s articles of association, and an order appointing his nominated director to the board. The Claimant also seeks damages and/or other relief for breach of his information rights under the SHA. The Claimant’s claim is further particularised in the attached Particulars of Claim.”
“The court must have regard to the circumstances as a whole. In doing so, it will recognise that [the defendant], which now seeks to resist specific performance, saw fit to give an express contractual acknowledgment of the inadequacy of damages as a remedy.”
“This category of information (which is limited to Directors of the Company) is intended to capture all emails which were sent to a previously live director email distribution group. No such distribution group has been used since September 2020. Communications between the two remaining Group directors Graham Wellesley and Andrew Turnbull typically take place via Teams meetings.”
“Where Ordinary Shares have been transferred under Article 49.2 to a husband or wife or civil partner of the particular individual member or former individual member referred to in Article 49.1.2 or any parent of such husband or wife or civil partner (whether directly or indirectly by a series of transactions under Article 49) and such husband or wife or civil partner ceases to be married to, or in civil partnership with (as the case may be), the relevant individual, other than by reason of death of such individual, then it shall be the duty of the member which is the former husband or wife or civil partner or parent of any such person to notify the Directors in writing that such event has occurred and such member shall (unless the relevant shares are transferred to a Permitted Transferee of the particular individual member or former individual member referred to in Article 49.2) be bound to give a Transfer Notice in relation to the Ordinary Shares held by such member.”
“(6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court.”
“Except as provided in this clause 17 (or under or pursuant to the Charge Agreements) no person may assign, hold on trust or otherwise transfer its rights or benefits under this Agreement without the written consent of all other Parties or mortgage or otherwise charge its Shares unless the terms of the Articles apply on any crystallisation of such mortgage or charge and provided always that all terms of the Articles and this Agreement affecting such Shares continue to apply.”
“The Claimant continues to hold more than 9% of the total issued Ordinary Shares in the Company, and has been at all material times and continues to be, a “Principal Shareholder” within the meaning of the Shareholders’ Agreement and the Articles.”