“a. the premium paid by [the first claimant] to [Mr Moeller] for his shareholding in [the first claimant] pursuant to the Order (calculated by giving credit for the true market value of the same in the sum of£1,415,250 from the sum paid to [Mr Moeller] of£1,887,000 ) in the sum of£471,750 ; b. the total costs incurred by [the first claimant] and/or [the second claimant] in defending the Petition and dealing with [Mr Moeller’s] costs claim in the sum of£559,196.14 ; c. The total legal costs ordered to be payable by [the first claimant] and [the second claimant] pursuant to the Order including the interim sum of£260,500 .”
“alleged true market value of [Mr Moeller’s] shareholding in the sum of£1,415,250 is calculated, computed or otherwise made up.”
“4. ……. a. The offer made by [Mr Moeller] on or around1st April 2021 to settle the Petition was for [the first claimant] to buy-back his shares in that company in the total sum of£1,887,000.00 and to pay his costs on the Petition (“the Offer”). b. The Offer was made on the basis that there would be no discount to reflect that his shares were a minority interest in [the first claimant]; c. The Offer was also made on the counter-factual basis that the Property had not been sold from [the first claimant’s] ownership. d. Utilising [Mr Moeller’s] pro-rating methodology (which methodology was not admitted to be correct) [the claimants] accepted privately that the figure of£1,887,000.00 was either: (i) likely to be accepted by a Judge at trial as correct on a net asset basis; or (ii) advantageous to them since it was slightly lower than the correct net asset market valuation…. g. In the event that [Mr Moeller’s] shares in the [first claimant] had been valued for an open market sale by him, as a willing purchaser, to another, as a willing buyer, on the same counter-factual basis as in 4(c) above, a minority discount would have been applied of at least 25%.” a. The offer made by [Mr Moeller] on or around1st April 2021 to settle the Petition was for [the first claimant] to buy-back his shares in that company in the total sum of£1,887,000.00 and to pay his costs on the Petition (“the Offer”). b. The Offer was made on the basis that there would be no discount to reflect that his shares were a minority interest in [the first claimant]; c. The Offer was also made on the counter-factual basis that the Property had not been sold from [the first claimant’s] ownership. d. Utilising [Mr Moeller’s] pro-rating methodology (which methodology was not admitted to be correct) [the claimants] accepted privately that the figure of£1,887,000.00 was either: (i) likely to be accepted by a Judge at trial as correct on a net asset basis; or (ii) advantageous to them since it was slightly lower than the correct net asset market valuation…. g. In the event that [Mr Moeller’s] shares in the [first claimant] had been valued for an open market sale by him, as a willing purchaser, to another, as a willing buyer, on the same counter-factual basis as in 4(c) above, a minority discount would have been applied of at least 25%.”
“Utilising [Mr Moeller’s] pro-rating methodology (which methodology was not admitted to be correct) [the claimants] accepted privately that the figure of£1,887,000.00 was tactically one that should be accepted in circumstances where (i)either: (i) likely to be accepted by a Judge at trial as correct on a net asset basis; or (ii) advantageous to them since it was slightly lower than the correct net asset market valuation. whilst higher than a (final) valuation report obtained by them dated14 April 2021 it was not dramatically different, (ii) the significant brief fees for trial were shortly to be incurred by [the second claimant]; and/or (iii) [the second claimant] had successfully negotiated down from previous higher valuations/payment to [Mr Moeller] including (but not limited to) those where [Mr Moeller] had previously demanded unpaid dividends .”
“the amendments have been bought [sic] about as the original response was based on our clients’ draft report dated6 April 2021 as opposed to the final report dated14 April 2021 which contained differing calculations for the purposes of the valuations.”
“Based on the information and documents provided to the Claimants’ expert in the UP Litigation and the fact settlement was achieved on28 April 2021 : 1. On the assumption that the Property Sale was treated as never having taken place, what was the open market valuation of Mr Moeller’s 50% shareholding in Sodi-Tech EDM Limited to a hypothetical willing third-party purchaser at arms’ length immediately before28 April 2021 . 2. On each of the assumptions that (i) the Property Sale was not unwound and (ii) the Property Sale was treated as unwound, what was the value of Peter Capp’s shareholding in Sodi-Tech EDM Limited assuming an open market sale to a hypothetical willing third-party purchaser at arm’s length (a) immediately before28 April 2021 ; and (b) immediately after28 April 2021 .” (ii) defendant: “1. The net asset value of C1 as a whole at the time the Petition was settled, on the hypothesis that the Property Sale had been unwound. 2. On the assumption of a sale on the open market, what (if any) discount would have been appropriate for: a. The valuation of Mr Moeller’s shareholding at the time the Petition was settled. b. The valuation of Mr Capp’s shareholding (i) before and (ii) after the Petition was settled.”
“a) In exercising the discretion underCPR 17.3 , the overriding objective is of central importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. b) A strict view must be taken to non-compliance with the CPR and directions of the Court. The Court must take into account the fair and efficient distribution of resources, not just between the parties but amongst litigants as a group. It follows that parties can no longer expect indulgence if they fail to comply with their procedural obligations: those obligations serve the purpose of ensuring that litigation is conducted proportionately as between the parties and that the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately is satisfied. c) The timing of the application should be considered and weighed in the balance. … The timing of the amendment, its history and an explanation for its lateness, is a matter for the amending party and is an important factor in the necessary balancing exercise: there must be a good reason for the delay. d) The prejudice to the resisting parties if the amendments are allowed will incorporate, at one end of the spectrum, the simple fact of being ‘mucked around’ to the disruption of and additional pressure on their lawyers in the run- up to trial and the duplication of cost and effort at the other. … e) Prejudice to the amending party if the amendments are not allowed will, obviously, include its inability to advance its amended case, but that is just one factor to be considered. Moreover, if that prejudice has come about by the amending party’s own conduct, then it is a much less important element of the balancing exercise.”
“Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.”
“68…it is necessary to look at the pleaded issues and, unless and until a particular issue is excluded from consideration underCPR 3.1 (2)(k), the court must ask itself the following important questions: (a) The first question is whether, looking at each issue, it is necessary for there to be expert evidence before that issue can be resolved. If it is necessary, rather than merely helpful, it seems to me that it must be admitted. (b) If the evidence is not necessary, the second question is whether it would be of assistance to the court in resolving that issue. If it would be of assistance, but not necessary, then the court would be able to determine the issue without it (just as in Mitchell the court would have been able to resolve even the central issue without the expert evidence). (c) Since, under the scenario in (b) above, the court will be able to resolve the issue without the evidence, the third question is whether, in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings. In that case, the sort of questions I have identified in paragraph 63 above will fall to be taken into account….” “63. [If expert evidence is not necessary, then in assessing whether it is reasonably required] … the court should, in my judgment, be prepared to take into account disparate factors including the value of the claim, the effect of a judgment either way on the parties, who is to pay for the commissioning of the evidence on each side and the delay, if any, which the production of such evidence would entail (particularly delay which might result in the vacating of a trial date).”
“10-004 The first and most important rule is that the claimant must take all reasonable steps to mitigate their loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which they failed, through unreasonable action or inaction, to avoid. Put shortly, the claimant cannot recover for reasonably avoidable loss. 10-005 The second rule is the corollary of the first. It is that where the claimant does take reasonable steps to mitigate the loss to them consequent upon the defendant’s wrong they can recover for loss incurred in so doing; this is so even though the resulting damage is in the event greater than it would have been had the mitigating steps not been taken. Put shortly, the claimant can recover for loss incurred in reasonable attempts to avoid loss. 10-006 The third rule is that the claimant cannot generally recover for avoided loss. Where the claimant takes steps before or after the wrong, or a third party takes steps, that avoid the loss then this reduces the recoverable loss. The most common scenario is where the claimant takes ordinary or reasonably necessary steps to mitigate the loss to them consequent upon the defendant’s wrong, and where these steps are successful. Then, the defendant is entitled to the benefit accruing from the claimant’s action and is liable only for the loss as lessened; this is so even though the claimant would not have been debarred under the first rule from recovering the whole loss, which would have accrued in the absence of their successful mitigating steps, by reason of these steps not being ones which were required of them under the first rule. In addition, where the loss has been mitigated by other reasonably foreseeable means such as actions by third parties or actions by the claimant before the wrong, the claimant can again recover only for the loss as lessened.”