National Landlords Association v Stimpson [2008] EWHC 2340 (QB)

Case No 1HQ/08/0668

[2008] EWHC 2340 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice

Date Thursday, 31 July 2008

Strand

London WC2A 2LL

Before

HIS HONOUR JUDGE SEYMOUR QC

(SITTING AS A JUDGE OF THE HIGH COURT)

Between

NATIONAL LANDLORDS ASSOCIATIONClaimant

STIMPSONDefendant

Digital Transcript of Wordwave International, a Merrill Communications Company

PO Box 1336, Kingston-Upon-Thames, Surrey KT1 1QT

Tel No: 020 8974 7300 Fax No: 020 8974 7301

Email Address: mlstape@merrillcorp.com

Mr James Watthey appeared for Claimant

Mr Timothy Sisley appeared for Defendant

JUDGMENT

[1]THE JUDGE: At the root of the application before me is a dispute within the Southern Private Landlords Association, to which it is convenient to refer as "SPLA", although in some of the documents which were put before me it was referred to as the National Federation of Residential Landlords, which is or was its trading name, or by the acronym of that trading name, NFRL, concerning an agreement (to which I shall refer in this judgment as "the agreement"), dated 8 July 2008, and on its face made between SPLA and the applicant claimant, National Landlords Association Limited (to which I shall refer in this judgment as "NLA").

[2]SPLA is a company limited by guarantee. Under the articles of association of SPLA that which, in the case of an ordinary limited company, would be called the board of directors is called the executive committee and a person who, in the case of an ordinary limited company, would be called a director is called an executive. In place of the shareholders in an ordinary limited company SPLA has, or had, members. By article 43 of the articles of association it was provided that:

"The quorum for the transaction of the business of the Executive Committee shall be four Executives, one of whom shall be an Officer, present at the meeting or present by telephone."

[3]The dispute to which I have referred focused on whether one of those who purported on behalf of SPLA to resolve as the executive committee at a meeting on 30 June 2008 the making of the agreement had himself been properly appointed as an executive. The individual concerned was Mr Anthony Richard. It was contended that Mr Richard not having been properly appointed as an executive by a quorate executive committee, it followed that the resolution to enter into the agreement was itself vitiated. However, it was contended on behalf of the supporters of the agreement that a complete answer to the challenge to the resolution to enter into the agreement was provided by the terms article 47 of the articles of association of SPLA, by which it was provided that:

"All acts done by a meeting of Executive Committee, or of a sub-committee, shall, notwithstanding that it be afterwards discovered that there was a defect in the appointment of any Executive or that any of them was disqualified from holding office, or had vacated office, or were not entitled to vote, be as valid as if every such person had been duly appointed and was qualified and had continued to be an Executive and had been entitled to vote."

[4]I did not hear any argument as to the proper construction of article 47, but as a matter of first impression it strikes me that reliance could only be placed on the provisions of that article in circumstances in which it was believed at the time of the meeting of the relevant executive committee that the person whose appointment was in question had been properly appointed but it was subsequently discovered that that was not the case. It seems unlikely that article 47 was intended to deal with a situation in which it was known at the date of the relevant meeting of the executive committee that a particular person purporting to act as an executive had not been validly appointed. To construe the article in any other way than that which I have suggested would seem to subvert the provisions of the articles of association by which the appointment of executives was governed.

[5]Article 39 of the articles of association of SPLA provided, so far as is presently material, that:

"An Executive shall cease to hold office if he ... (3) is absent without the permission of the Executive Committee, from 50% of the general meetings and Executive Committee meetings held within a calendar year and the Executives resolve that his office be vacated."

[6]As at 23 June 2008 SPLA had five executives. They were the defendant, Mr Michael Stimpson, who was also the President, Mr Barry Markham, who was also Chairman, Mrs Ruth Kerslake, who was also the Vice-Chairman, Mr Ken Groves, who was also the Company Secretary, and Mr Michael Cohen, who was also the Company Treasurer. By virtue of the offices which each of these individuals held in addition to being an executive, each was also an officer for the purposes of the articles of association. In relation to those who were members of the executive committee as at 23 June 2008, the dispute to which I have referred ranged those in favour of the agreement, Mr Markham, Mr Groves and Mr Cohen, against the opponents, Mr Stimpson and Mrs Kerslake.

[7]At what purported to be a meeting of the executive committee on 30 June 2008 Mr Markham, Mr Groves and Mr Cohen resolved that Mr Stimpson and Mrs Kerslake be removed as executives with immediate effect pursuant to the provisions of article 39(3) of the articles of association. They then resolved to appoint Mr Richard to be an executive. They and Mr Richard then resolved that SPLA should enter into the agreement. It was contended on behalf of Mr Stimpson that the executive committee was inquorate when it purported to resolve to remove Mr Stimpson and Mrs Kerslake as executives and was inquorate when it purported to appoint Mr Richard to be an executive.

[8]I do not have to decide whether those contentions are well-founded, but it is plain that each of the decisions to which I have referred was made by fewer than the four executives referred to in article 43. Again, I do not have to decide whether a consequence of Mr Richard being appointed an executive by an inquorate executive committee, if that were the case, would be that the resolution to enter into the agreement was of itself vitiated. That, as I understand it, is a matter to be considered in other proceedings which will be, or have been, commenced on behalf of Mr Stimpson.

[9]By a lease (to which I shall refer in this judgment as "the lease") dated 15 September 2005 and made between Silvi Trimmings Limited and SPLA, Silvi Trimmings Limited demised to SPLA the premises known as and situate at Unit 8, Wellington House, Camden Street, Portslade, East Sussex BN41 1DU (to which premises I shall refer in this judgment as "the premises"), for a term of five years from 7 September 2005. Camden Street is a road abutting at 90 degrees Wellington Road in Portslade. Wellington House is on the corner of Camden Street and Wellington Road. Wellington Road is the A259, which is the principal road running along the coast of the South of England in this area. It is, for example, the main road between Brighton and Worthing.

[10]Clause 2 of the lease contained covenants on the part of SPLA. By subclause (18), SPLA covenanted:

"(a) Not to underlet alone or part with possession of the whole or part only of the Demised Premises (b) Not to assign part only of the Demised Premises."

[11]By subparagraph (19) of clause 2 of the lease SPLA covenanted, so far as is presently material:

"(A) Subject to sub-clauses (1) and (2) hereof not to assign the whole of the Demised Premises without first obtaining the written consent of the Landlord which shall not be unreasonably withheld or delayed."

[12]Clause 2.1 of the agreement was in these terms:

"Unless expressly provided in this agreement, SPLA shall transfer with full title guarantee, or to the extent that it is not the owner thereof shall use reasonable endeavours to procure the transfer with full title guarantee, and NLA, with a view to carrying on the Business as a going concern, shall acquire the Business and Assets free from all Encumbrances and with effect from the Effective Time."

[13]The expression "assets" was defined for the purposes of the agreement. For present purposes it is enough to say that the definition included all of the assets of SPLA, including the residue of the term created by the lease. The expression "the effective time" was defined for the purposes of the agreement as meaning 4pm on 7 July 2008, that is the day before the date of the agreement.

[14]Clause 4.1 of the agreement was, so far as is presently material, to this effect:

"Completion shall take place on the completion date."

The words "completion date" were defined in clause 1.1 of the agreement as:

"The date of this agreement."

By clause 4.2 of the agreement it was provided that:

"At Completion, SPLA shall comply with its obligations set out in paragraph 1 of Schedule 2."

[15]Included within the obligations to be performed pursuant to paragraph 1 of schedule 2 was the delivery of:

"…(b) duly executed conveyances, assignments, licences and other documents in the agreed form necessary to vest title in the Property in, or transfer the Property to, NLA or as NLA directs; "(c) the title deeds relating to the Property and all invoices, policies, premiums, receipts, maintenance contracts, health and safety files and other accounts relating to the Property."

[16]What was referred to as "the property" is what I have called "the premises". The last substantive provision of the agreement which it is necessary to notice is clause 13.3:

"If any of the Contracts cannot be assigned or novated without obtaining a Third Party Consent, then SPLA shall use all reasonable endeavours to obtain such consents."

[17]For the purposes of the agreement the definition of the word "contracts" was:

"All contracts, arrangements, licences and other commitments relating to the Business (including contracts with Members) entered into, on or before, and which remain to be performed by any party to them in whole or in part at the Effective Time."

[18]The definition of the expression "third party consent" was:

"A consent, licence, approval, authorisation or waiver required from a third party for the conveyance, transfer, assignment or novation in favour of NLA of any of the Assets or Assumed Liabilities in terms acceptable to NLA."

[19]It thus appeared that clause 13.3 might be capable of applying to the need to obtain licence to assign from Silvi Trimmings Limited before SPLA could effectively assign to NLA the residue of the term created by the lease. However, the provisions of clauses 2.1 and 4.2 and those of paragraph (1) of schedule 2 appear to contemplate that an effective assignment of the residue of the term created by the lease could take place on the date of the agreement. That could only be so if licence to assign had been obtained prior to that date.

[20]What is before me is an application on behalf of NLA seeking against Mr Stimpson the following relief: "1. The injunction ordered by Jackson J dated 18 July 2008 shall continue until trial or further order as modified as follows: (1) the respondent do (i) refrain from entering or attempting to enter premises at Unit 8, Wellington House, Camden Street, Portslade, East Sussex BN41 1DU ('the premises'); (ii) refrain from coming within 100 metres of the premises; (iii) refrain from any personal contact with the applicant, the applicant's employees or employees of the SPLA by any means other than through the applicant's solicitors, Messrs Sherrards, whose details appear at the end of this order." [Quotation unchecked.]

[21]The order made by Jackson J was, so far as presently material, that: "Until 10am on 30 July 2008 (‘the return date’) when there shall be a further hearing in respect of this Order or until further

[22]Effectively, therefore, what was sought by the application which came before me was the continuation of an order in the terms of paragraph 1(iii), (v) and (vii) of the order of Jackson J. The reason why the continuation of the other orders which I have set out was not sought was that the computer equipment referred to had been returned to NLA and the keys to the premises had been delivered up.

[23]The application was opposed on behalf of Mr Stimpson. Mr Timothy Sisley, who appeared on his behalf, submitted that Jackson J should never have made the order which he did because NLA had no cause of action against Mr Stimpson which justified making the orders which Jackson J did. Mr Sisley also submitted that there had been nondisclosure of material facts to Jackson J on the hearing of the application before him and therefore the injunctions which he granted should in any event be discharged on that ground. He further submitted that NLA did not come to the court with clean hands and therefore should in the discretion of the court be denied relief in any event on that ground.

[24]Mr James Watthey, who appeared on behalf of NLA, submitted that it was not correct that any material facts had not been disclosed to Jackson J but that, if it had been, the nondisclosure was not of such a nature as to merit the discharge or non-continuation of the order. Moreover, he submitted that all NLA had to demonstrate at this stage in order to be entitled to the injunction sought was that there was a serious question to be tried as to whether it had good causes of action against Mr Stimpson and that, he contended, was demonstrated on the evidence put before Jackson J and that put before me. The causes of action upon which NLA relied were trespass to the premises, unlawful interference with the goods removed from the premises and unlawful interference with economic interests of NLA.

[25]Mr Sisley helpfully reminded me that in Brink's Mat Limited v Elcombe

[1988] 1 WLR 1350

at page 1357 Ralph Gibson LJ, giving the leading judgment of the Court of Appeal, had included in the factors relevant for the court to consider in respect of the consequence which should follow from a failure of the duty to make full and frank disclosure:

"(6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented. "(7) Finally, it 'is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:' per Lord Denning MR in Bank Mellat v Nikpour [1985] FSR 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms."

[26]At page 1358, C to E, in the same case Balcombe LJ said:

"On any ex parte application, the fact that the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard makes it imperative that the applicant should make full and frank disclosure of all facts known to him or which should have been known to him had he made all such inquiries as were reasonable and proper in the circumstances. "

The rule that an ex parte injunction will be discharged if it was obtained without full disclosure has a two-fold purpose. It will deprive the wrongdoer of an advantage improperly obtained: see Rex v Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac

[1917] 1 KB 486

, 509. But it also serves as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty. Nevertheless, this judge-made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex parte injunction was obtained: see in general Bank Mellat v Nikpour

[1985] FSR 87

, 90 and Lloyds Bowmaker Ltd v Britannia Arrow Holdings Plc, ante, p. 1337, a recent decision of this court in which the authorities are fully reviewed."

[27]Mr Sisley also reminded me of the observations of Sir Thomas Bingham, Master of the Rolls, in Fitzgerald v Williams

[1996] QB 657

at pages 667 to 668:

"In seeking ex parte relief an applicant must disclose to the judge any fact known to him which might affect the judge's decision whether to grant relief or what relief to grant. It is no answer for an applicant who falls down on his duty to show that his breach of duty was committed in good faith and inadvertently, or to show that the relief would have been granted even had he complied with his duty. The courts have traditionally insisted on strict compliance with this rule, as affording essential protection to an absent defendant, and as applications for ex parte relief have multiplied so the importance of complying with this duty has grown. The law does not however require a judge to whom an application for discharge is made to grant that relief on proof that there was material which should have been but had not been disclosed to the original judge. The later judge has then to exercise his own judgment whether, in all the circumstances, the interests of justice are best served by discharging, or maintaining, or varying the original order. In making this judgment he will have regard to the importance of securing compliance with the fundamental principle, but he will have regard also to the significance in the context of the particular case of the facts which had not been disclosed when they should have been."

[28]While it is plain from the passages which I have cited that there is a disciplinary aspect to the question of material nondisclosure, such that it may have been material to consider whether the nondisclosure was of such significance that it is not appropriate for the court to entertain the application for the continuation of an interim injunction granted without notice at all, it is also clear that the court has in each case to consider whether on the particular facts of that case it ought to exercise its discretion in favour of the defaulting applicant. The exercise of such discretion is not appropriate in a case in which the applicant in fact does not raise by his evidence a serious issue to be tried as to his entitlement to a permanent injunction at trial. It is thus convenient in the present case first to consider the submission of Mr Sisley that NLA had no cause of action against Mr Stimpson sufficient to justify at least a continuation of injunctions against him.

[29]In Fourie v Le Roux

[2007] UKHL 1

at paragraph 33 Lord Scott of Foscote said:

"Whenever an interlocutory injunction is applied for, the judge, if otherwise minded to make the order, should as a matter of good practice, pay careful attention to the substantive relief that is, or will be, sought. The interlocutory injunction in aid of the substantive relief should not place a greater burden on the respondent than is necessary. The yardstick in section 37(1) of the 1981 Act, ‘just and convenient’, must be applied having regard to the interests not only of the claimant but also of the defendant."

[30]The evidence which was put before Jackson J in support of the without notice application to him was, to say the least, scanty. It took the form of a witness statement dated 18 July 2008 of Mr Barnaby Laurence, a solicitor, comprising 13 paragraphs, set out, if one leaves out of account the heading on the document, on barely three A4 pages of double spaced typing. Omitting the preliminaries and the immaterial last two paragraphs, what Mr Laurence said was:

"3. My firm has been instructed late this afternoon in this matter in circumstances of urgency. I summarise below in brief the circumstances giving rise to my instruction, and as relayed to me (and approved) by our client... "6. At an EGM of the Membership of SPLA, a resolution was passed to sell the Assets. This was against the wishes of the Chairman Mr Stimpson, the Respondent. He has always alleged that the transfer was not lawful. The majority Board of the SPLA are happy with their actions and the Members voted in sufficient numbers to lead to this outcome. "7. Under the terms of the Business Acquisition Agreement (BAA) SPLA were to obtain a licence from the Landlord to assign the Lease to NLA. That had not yet been completed. There had been a Licence to Occupy which terminated on completion. SPLA now holds the premises on trust for NLA to occupy. SPLA retain the right of possession of the property. "8. On Friday 18th July NLA arrived at the premises to find that the locks had been drilled out and changed and a notice put up on the door by Mr Stimpson. A copy of that notice is at BJL3. Mr Stimpson has no personal rights to the Premises (he is not landlord and the Memorandum and Articles of Association of SPLA give him no overreaching rights. (sic) "9. At 12.45pm today SPLA authorised NLA to enter the premises by force, which they did. Unfortunately the Server and all the data on it had been removed. NLA are currently taking an inventory as there may be other missing equipment. I am instructed by NLA that the telephones at the Premises were diverted from the NLA number to Mr Stimpson's own office address. "10. The database holds the details (names, addresses and email) of over 5000 high net worth individuals (rented property owners). These are NLA's customers, in effect, and NLA owes them contractual obligations. Those customers have paid for the service, which NLA cannot now provide given the actions of Mr Stimpson. The Server holds the Accounts records, Subscription Records, Member Register and Records and Payroll details. "11. NLA are concerned Mr Stimpson will damage the server or the data held thereon and use the email addresses to harm the business of NLA. NLA cannot provide appropriate services to SPLA Members that they are contractually obliged to provide as they cannot verify that they are Members. Also NLA are paying staff who have had to be sent home as they cannot work without the Server."

[31]There were three attachments to the witness statement of Mr Laurence. The first was a copy of the agreement. The second was a copy of the lease. The third was a copy of a document apparently fixed to the premises on 18 July 2008. It bore a type written signature of Mr Stimpson and purported to prohibit access to the premises without his agreement.

[32]For the purposes of the hearing before me Mr Laurence made a second witness statement, dated 25 July 2008. That statement added nothing to the material alleged to justify the relief sought against Mr Stimpson. It simply set out to deal with the developments between the grant of the injunction by Jackson J and the hearing before me. One of those developments was in fact the sending by Messrs Griffith Smith Farringdon Webb (to which firm I shall refer in this judgment as "GSFW"), solicitors acting on behalf of Mr Stimpson, to Mr Laurence's firm, Messrs Sherrards, of a letter dated 22 July 2008, described as "fourth letter", in which were set out extensively the matters complained of as material nondisclosure on the occasion of the application to Jackson J. That letter was amplified in a letter dated the next day, described as "third letter". About the matters raised in these letters Mr Laurence said at paragraph 2 of his witness statement dated 25 July 2008:

"I do not propose in this statement to address the substantive issues that have arisen in correspondence between the parties' solicitors but, rather, to explain to the Court what has occurred in terms of practical steps and to put in evidence the correspondence that has come into existence, which is voluminous."

[33]The applicant thus consciously determined not to put before the court any evidence contesting the accuracy of the complaints made on behalf of Mr Stimpson. Messrs Sherrards had not responded to the letters which I have mentioned, so there was no evidence before me in relation to the matters complained of apart from that of Mr Stimpson. He dealt with these matters in a witness statement dated 28 July 2008, to which was exhibited a substantial bundle of documents. No application was made to me on behalf of the applicant for an adjournment to have an opportunity to respond to the witness statement of Mr Stimpson.

[34]Mr Stimpson said in his witness statement that he had not himself entered upon the premises on 18 July 2008, or taken the computer equipment described as the server, or posted the notice bearing his typed signature on the premises. I am not in a position to determine whether his assertions about these matters are correct or not. Those are matters, perhaps, for the trial judge. Mr Stimpson did accept in his witness statement that he was in a position to arrange for the server to be returned to NLA and that he had done that. I am satisfied that on the material put before Jackson J and on that before me there was and is a serious question to be tried as to whether Mr Stimpson interfered unlawfully with the server, an asset title to which arguably passed to NLA from SPLA, if the agreement was effective. However, it is plain, in my judgment, that NLA was not entitled to seek relief from Jackson J for alleged trespass on the premises.

[35]Mr Watthey contended before Jackson J, and he initially contended before me, that the effect of the making of the agreement was that NLA had acquired an equitable interest in the premises by virtue of the agreement to assign the residue of the term created by the lease and that that equitable interest was sufficient to entitle NLA to maintain a cause of action in trespass to the premises. However, I think that Mr Watthey eventually accepted that, as is explained in Halsbury's Laws of England, volume 45(2), paragraph 158:

"Trespass is an injury to a possessory right and therefore the proper claimant in a claim of trespass to land is the person who was, or who is deemed to have been, in possession at the time of the trespass. The owner has no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession is not sufficient to support a claim."

[36]On the evidence of Mr Laurence at paragraph 7 of his first witness statement the person in possession of the premises as at 18 July 2008 was not NLA but SPLA. That of course is what one would expect, having regard to the covenants in clause 2.18 of the lease. Mr Watthey asserted on instructions that at some point prior to now a licence to assign the residue of the term created by the lease had been granted by Silvi Trimmings Limited and an assignment had been executed. No evidence in support of those assertions was put before me and the contentions were disputed on behalf of Mr Stimpson. What was plain on the material before me was that NLA had not adduced evidence to raise a serious issue to be tried as to whether as at 18 July 2008 or today it had a good title to sue in respect of trespass to the premises.

[37]Moreover, it seemed that Jackson J had been misled in relation to the claim for an injunction to restrain trespass to the premises by not being reminded of the necessity for a claimant in a case of alleged trespass to land to have possession of the land in question or a right to possession superior to that of the defendant. Had Jackson J been reminded of that, I am confident that he would never have granted an injunction to restrain Mr Stimpson from entering upon the premises. The claim for that injunction fails.

[38]As it seemed to me, it was not possible to discern a properly arguable legal foundation for the other injunctions which NLA sought to have continued against Mr Stimpson. I think in the end all that Mr Watthey sought to rely upon was the alleged unlawful interference with the economic interests of NLA. That is a tort the precise ambit of which is uncertain and which is possibly in the process of development. My attention was not drawn to any authority to support the proposition that approaching within a radius of premises or seeking to speak to individuals who were employees of the claimant amounted to the commission of the tort. In those circumstances I am not satisfied that the applicant has demonstrated that there are serious issues to be tried in relation to its claims for those sorts of relief. I very much doubt that Jackson J would have granted the injunctions which he did in relation to approaching within a radius of 100 metres of the premises if it had been explained to him, as it seems to me it should have been, what were said to be the foundations in law for those types of relief.

[39]Moreover, it seems to me that the attention of Jackson J ought to have been drawn to the fact that the premises abutted the A259 road when inviting him in effect to prevent Mr Stimpson travelling by bus between Brighton and Worthing. Again, had it been drawn to his attention, I am confident that he would not have granted the injunction against coming within 100 metres of the premises. So for the reasons which I have given I am not going to continue the injunctions granted by Jackson J, as modified, as sought in the application before me. Instead I dismiss that application.

[40]However, it is necessary to return to the question of whether in other respects than those which I have just mentioned matters were not drawn to the attention of Jackson J which should have been. It is convenient to begin by considering the terms of paragraph 6 of the first witness statement of Mr Laurence. Mr Laurence did not there explain the basis upon which Mr Stimpson contended that the agreement was unlawful or the material which supported that contention. I have already explained the basis for Mr Stimpson's contention. In my judgment, that basis ought to have been brought to the notice of Jackson J, for it showed that Mr Stimpson had arguably sound grounds for his position. That raised the possibility that NLA did not have a good cause of action against Mr Stimpson in trespass, even on its own analysis, and might have influenced the view which the judge took on the balance of convenience in relation to the granting of an injunction without notice.

[41]The uncontested evidence in support of Mr Stimpson's position as to the lawfulness of the agreement, apart from the matters which I have already mentioned, started with an attempt on 23 June 2008 by Mr Markham, Mr Groves and Mr Cohen to appoint as an executive Mr Mark Harrison. Minutes of the purported executive committee meeting on 23 June 2008 included a material passage. Those who were present at the purported meeting in person were Mr Markham, Mr Groves and Mr Cohen. The various individuals referred to are identified in the minutes by their initials. The relevant passage is this:

"BM [Mr Markham] informed the Board that no approval had been given for the non-attendance of MS [Mr Stimpson]. It was noted that RK [Mrs Kerslake] had stated that she would be available all of this week, and that no apology had been given. BM informed the board that RK had attended board meetings via telephone link in the past, and asked MC [Mr Cohen] to telephone RK on her home number. There was no reply to RK's home number. BM asked MC to telephone RK's mobile number. MC reported that he had succeeded in contacting RK by telephone. KG informed the Board that the meeting was now quorate. "1. A general discussion took place about the accounts. RK requested that she be given details of the auditor, in order to ask questions. Due to the request of RK, a decision to approve the accounts was delayed until a later meeting. MC agreed to implement request. "2. BM explained to RK that it was important to discuss the status of the conference. RK expressed the view that a discussion on the conference was not urgent. "3. BM explained that due to difficulties in arranging a quorate Board Meeting and conducting company business, it was necessary to appoint another Director. BM had already spoken to Mark Harrison, who had indicated a willingness to be a director of the SPLA. Mark Harrison had already spoken to MS, who had indicated his support for MH to join the Board. The proposal was put to a vote. "

KG [Mr Groves] voted in favour. MC [Mr Cohen] voted in favour. BM [Mr Markham] voted in favour. RK [Mrs Kerslake] voted against. "BM declared the proposal was carried, and it was therefore resolved that Mark Harrison be duly appointed as a director of the Southern Private Landlords Association. The Company Secretary was instructed to file the appropriate forms with the Registrar. "BM asked RK when she could give an update on the conference. BM received no reply. BM reported that the mobile telephone signal had then failed. Several attempts were made to reinstate contact, without success. KG managed to get a reply from an unknown lady who stated that RK was unavailable. KG left a message for RK to telephone back. "KG informed the Board that it was no longer quorate."

[42]When Mrs Kerslake became aware of that account of what had transpired on 23 June 2008 she wrote an e-mail to Mr Markham, Mr Groves, Mr Stimpson and Mr Cohen which she dispatched at 09.51 hours on 30 June 2008. The material part of her e-mail said this:

"As a Director of Southern Private Landlords Association trading as NFRL I hereby state that I did not attend a Board meeting of the Company on Monday 23 June 2008 and therefore the meeting on that date was not quorate and under Company Law no resolutions could be passed. "

If Directors do not accept my statement that I was not present at a Board meeting on 23 June 2008 then the matter will need to be determined in a Court of Law as a matter of urgency. "Until this matter has been resolved either by the above Directors confirming in writing that I did not attend a Board meeting on 23 June 2008 or, alternatively, in a Court of Law, I require that no decisions are made which require Board approval including entering into an agreement which would enables (sic) another organisation to acquire the assets of the Company or making a payment from Company funds in respect of the private legal costs of any individual director."

[43]When Mr Harrison became aware of the position of Mrs Kerslake, which it seems was in fact earlier than 30 June 2008, he set out his position in an e-mail of 29 June 2008, sent at 5.01pm to Mr Markham. He said:

"I am afraid that I don’t feel able to come to the board meeting on Monday. As you probably know, there have been some concerns expressed as to whether my appointment as a Director last Monday was valid. While I appreciate that you took legal advice, and you and Ken represented to me that I WAS properly appointed, I have now taken my own advice. My understanding is that while I probably AM a Director at the moment, were there to be a legal challenge, it would almost certainly be ruled that my appointment was invalid, and I would be struck off. As such, I feel the only choice open to me at this point is to resign."

[44]Mr Cohen's position about what had transpired on 23 June 2008 was set out in fact in minutes of what purported to be an executive committee meeting held on 30 June 2008. The material note is this:

"MC reminded the meeting that he was the longest serving member of the Board, save for Mr Stimpson, having served since the formation of the Company. For some years prior to that he had also served on the committee of the unincorporated association. "

MC asked the Board to note that, while he had no doubt that the proposed merger with NLA was in the best interests of members and that it complied with and put into effect the resolution passed overwhelmingly at the General Meeting held on 4th April 2008, he was also cognisant of the matters contained in the email received by him and others at 9:49 am 30th June 2008 from Mrs Kerslake. [That is the e-mail which I have already cited.] In particular he was concerned at the perceived threat contained in the final paragraph of that email. "In all the circumstances MC declared that he could not vote in favour of the proposed merger with NLA at this time and would therefore abstain. "MC added that he would also have to consider whether to remain on the Board. However, given that two board members were failing to attend any meetings, he was reluctant to place colleagues in a position in which meetings could again be deemed non-quorate and the business of the Company disrupted."

[45]Some indication of the view which Mr Markham took of what had transpired at the meeting on 23 June 2008 is given by a letter which he wrote to a Mr Willmott on 23 June 2008 itself. He said, so far as is presently relevant:

"I am writing to you on a matter of the utmost importance to the management of your association. Regrettably two of our directors have for some time been unable to attend board meetings, a situation that has made it impossible for me to convene a quorate board meeting. I see no early prospect of the situation changing in which case urgent business of the association cannot be attended to, including pressing matters relating to the NFRL conference in august (sic), replacement of staff, and the possibility of merger with another landlord association in accordance with the vote at the April general Meeting… "

At present we have five directors, none of them have (sic) advised me of their intention to retire. The majority of the current directors believe that two additional directors should be appointed to enable the business of the association to resume. "I am delighted that three long standing members have confirmed their willingness to serve as directors if elected. They are Mark Harrison, he is a highly experienced management consultant and a members (sic) of the NFRL Crawley branch, Tony Richard, vice chairman of the NFRL's Hastings and Rother Branch and Malcolm Pither currently chairman of the NFRL South east regional assembly and chair of the NFRL Eastbourne branch. "All three, in my view, are eminently suitable to be directors although since there are only two spaces on the board, I am proposing that Mark Harrison and Tony Richard are elected on 21st July (their resumes are overleaf). "Malcolm Pither would be a strong candidate for cooption to the board, should a vacancy occur."

[46]It is, as Mr Sisley submitted, difficult to reconcile the terms in which Mr Markham wrote in his letter to Mr Willmott on 23 June 2008 with Mr Harrison having been appointed an executive at the executive committee meeting on that very day.

[47]The Chairman of the claimant, NLA, is Mr David Salusbury. In a letter to Messrs Sherrards of 23 July 2008, the letter which I have already mentioned and which was described as "third letter", GSFW wrote, so far as is presently relevant:

"Since sending our Fourth Letter to you yesterday we have heard from Mrs Kerslake, one of the other SPLA directors. She tells us that she met with your client's chairman, Mr Salusbury, at your client's offices on 14th July. Mrs Kerslake had contacted Mr Salusbury to say that she was willing to assist in relation to a conference to be held about two weeks’ (sic) after then, and they had agreed to meet to discuss this. We understand that at the meeting, Mrs Kerslake said that she had been positive about the idea of a merger of SPLA with another organisation, but was not at all happy about the way in which the merger with NLA had been handled. Mr Salusbury apparently said that he accepted that there could be questions over the Board meeting on 23rd June, and offered that it might be re-run. This was not disclosed to the judge."

Mr Stimpson in his witness statement confirmed that the information which was set out in the passage which I have just quoted was provided to him by Mrs Kerslake and communicated by him to GSFW.

[48]The terms of paragraph 6 of the first witness statement of Mr Laurence indicated on its face that there was broad support amongst the members of SPLA for the agreement and the merger thereby with NLA. In fact, from the evidence produced by Mr Stimpson, that does not appear to have been the position. At paragraph 31 of his witness statement Mr Stimpson said:

"The announcement of the merger caused consternation in SPLA. On 14th July a meeting of some 200 members of the Brighton Branch of NLA (originally scheduled as a meeting of members of the Brighton Branch of SPLA) had expressed almost unanimous concern and dissatisfaction with the merger. Mr Markham sent his apologies for not attending."

[49]Then at paragraph 42.2 of his witness statement Mr Stimpson said:

"The meeting on 14th July was attended by several members of staff of the Claimant; they were handing out publicity material."

[50]Consequently, so Mr Sisley submitted, it was known to the claimant what was the attitude of the members of SPLA at the branch meeting on 14 July. There was other evidence of dissatisfaction on the part of the members. Considerably earlier in point of time, in fact on 13 May 2008, Mr Stimpson had circulated an e-mail to all of the members of SPLA of whom he was then aware. He explained in his witness statement that he did not have a current list of members when he dispatched his e-mail, but was operating from an earlier version of the list of members. What he said, so far as presently material, in his e-mail was this:

"Unfortunately, Barry Markham, the current Chair of NFRL, has refused access to the latest list of Members’ details (despite being contrary to Company Law). As a result, I am having to use a 2006 list. "

For current Members, your urgent action is needed to call an Extraordinary General Meeting (EGM), in order to replace some of the Board, who are not working in the interest of NFRL." "There are two attachments, one giving a ‘one page summary’ of the Board actions and the concerns of Branch Chairs and other Members, and the second attachment is a reply sheet for you to call for an EGM. "A total of 10% of all Members is needed in order to call for an EGM -- and every reply counts. Please action immediately." As I have said, one of the attachments to that e-mail was a summary of board actions and concerns and I think for the purposes of this judgment it is not necessary to read it.

[52]The circulation of the e-mail by Mr Stimpson did generate, it seems, something in excess of 550 replies from members requiring an EGM. The result of that happening was that Messrs Gaby Hardwicke, solicitors at that time acting, or purporting to act, on behalf of SPLA, wrote a letter dated 26 June 2008 to Mr Stimpson. The first paragraph of the letter explained:

"We are instructed by the above company in connection with requisitions deposited at its offices on 5 June 2008. We are instructed to write to you because it is understood that you are the principal mover behind the attempt to convene a general meeting. The Company will, however, circulate the main points of this letter to all members as soon as it is in a position to do so. "

Before turning to address the requisitions, it is appropriate that we comment first on two issues which have a material bearing on them. These are: 1. The temporary paralysis of the Company arising out of the failure of certain board members to attend board meetings. 2. Your circular to members dated 13 May 2008." It is not necessary to read paragraphs relating to those particular matters for the purposes of this judgment and I can proceed to this paragraph:

"Accordingly, we turn next to consider the requisitions. As noted above, they were deposited at the Company's offices on 5 June 2008. It is estimated that there are in excess of 550 and so the Company has proceeded on the basis that the bare numerical requirements of Section 303 of the Companies Act 2006 have been met. In ordinary circumstances, this would have left the Company's directors (including yourself, but see our comments on your failure to attend to Company business above) bound to convene a general meeting of the members within 21 days. As you well appreciate, however, the circumstances are anything but ordinary, in particular because of the two matters set out in the first part of this letter. "

Perhaps the most serious issue is the fact that, in order to drum up support amongst members for your requisition, you sent your email and circular of 13 May 2008 to what our client understands was the majority of the Company's members. This was notwithstanding the fact that it contained material inaccuracies, it was misleading and it contained defamatory statements about the majority directors. "In our client's view, the fact that you sought to solicit support for a requisition amongst members in this way can only lead to the conclusion that it would be improper and unfair to convene a meeting based on the requisitions. Indeed, we have now considered this issue with our client, and our advice is that it will be justified in refusing to convene a general meeting because the validity of the requisitions is so clearly impugned by your email. In forming this view, we rely inter alia on the case of Rose v McGivern

[1998] 2 BCLC 593

. "In such circumstances, the Company (acting through the board of directors) has decided that it would be wrong to convene a general meeting based on the requisitions. As we say, this is because the validity of the requisitions is so clearly impugned by your inaccurate, misleading and defamatory circular of 13 May 2008."

[53]The question of the requisitions was in fact considered at a purported meeting of the executive committee on 25 June 2008. Minute 10 bore the rubric:

"MS's general meeting request"

. It said this:

"It was noted that MS and others had lodged a request for a GM, supported by votes of 10% of the membership. It was further noted that there were no specific resolutions proposed for this meeting, and that, owing to non-attendance by RK and MS at past Board meetings, the Board had not been quorate until this meeting (which was also the deadline for responding). KG expressed his view that if the Board proceeded with MS's request, it would be admitting that the libellous comments as true, but is (sic) the board refused; it would be failing to comply with member's request. "

It was further noted that the Company had received legal advice that there were strong grounds to challenge the validity of the GM request (since many of the requests were obtained on the strength of a letter that contained factual inaccuracies). Consequently, the Board approved that a Solicitor's letter be written to MS and his co-signatories, advising them that the Company is challenging the legitimacy of the GM request, asking him to withdraw the request, and advising them that the Company will seek legal remedy if it is not withdrawn."

[54]So that on its face was the basis of the instruction to Messrs Gaby Hardwicke to write the letter to which I have referred. The outcome of all of this clearly was that those purporting to act as the executive committee of SPLA declined to summon an extraordinary general meeting in response to the requisitions which I have mentioned.

[55]Thus far I have been concerned with the attitude of executives or purported executives of SPLA to the agreement and the merger with NLA and with the attitude of the members, but, bearing in mind the impression created by paragraph 6 of Mr Laurence's first witness statement, it is perhaps material also to notice the attitude of the staff. The staff of SPLA prepared a document dated 10 July 2008 which was marked:

"For the attention of Mr Markham, Mr Salusbury and Mr Price of NLA"

. It was headed "Staff Grievance against NFRL and NLA, Past and Present Employers":

"FAILURE TO CONSULT AS PART OF THE TUPE MERGER TRANSFER PROCESS. "

As the elected staff representative for NFRL Staff, I am lodging an official grievance for and on behalf of the NFRL staff with both the above employers over the way the merger has been conducted. Under the TUPE regulations … the transferring employer and the prospective employer have a duty to inform and consult their respective employee representative."

[56]I interpose that that is in fact a reference to the Transfer of Undertakings (Protection of Employment) Regulations 2006, regulation 13. I go back to the text:

"THIS HAS NOT TAKEN PLACE. "

The information the employer MUST give to the staff representative IN WRITING BEFORE THE TRANSFER TAKES PLACE includes:- • The fact that a relevant transfer is to take place – NOT GIVEN • When that transfer is to take place – NOT GIVEN • The reason for transfer – NOT GIVEN • The implications of the transfer for affected staff – NOT GIVEN • Any measures that the new employers expect to take in relation to the employees who will be transferred – NOT GIVEN "There is a DUTY on the former and current employers to inform and consult with employees on the above points before transfer takes place giving time to consult with the representative of the workforce prior to the transfer taking place. YOU HAVE FAILED TO DO THIS. "Consultation should have been done with a view to SEEKING AGREEMENT to any intended measures. Employers are expressly required to consider any input from the representative and to reply to the representative giving any reasons for any rejection. THIS HAS NOT BEEN DONE. "This information should have been provided ‘long enough’ before the transfer to enable consultation; THIS HAS NOT BEEN COMPLIED WITH. "Despite repeated requests from staff for consultation under the TUPE legislation, NONE HAS BEEN PROVIDED. As a direct result staff have endured months of uncertainty, worry and stress during which time our many questions and requests for sight of documents remain ignored." I do not think for the purposes of this judgment it is necessary to read any further in that document.

[57]All of this material, which is not challenged, demonstrates, as it seems to me, that the true position was a long way from the position presented by Mr Laurence in paragraph 6 of his first witness statement. It was not the case that Mr Stimpson was a lone objector to an arrangement with which everybody else was happy. There was in truth widespread concern as to the legality of the merger between SPLA and NLA, not only among executives but also among the members and the staff. However, there was quite a lot more to it than that. That quite a lot more, which as I have said was not challenged, demonstrated that those on the executive committee who were in favour of the agreement rode roughshod over the opposition in breach of a variety of laws. That picture was plainly highly material to the question whether it was appropriate to grant an interim injunction without notice. An aspect of this bulldozing of the opposition was, of course, how Mr Stimpson and Mrs Kerslake had been treated and the appointment first of Mr Harrison and then of Mr Richard. I have also mentioned the reaction of the supporters of the agreement to the requisition by members and the failure to observe the requirements of regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

[58]However, what also happened was that Mr Markham, in breach of the requirements of section 55 of the Data Protection Act 1998, procured the communication to NLA without the consent of the individual members of SPLA of their personal details on the database of SPLA. How this happened was revealed in a statement made by Mr Dave Kennard. Mr Kennard, who was contracted by SPLA to provide information technology services, said in a statement which was put before me, so far as presently material, this:

"On Thursday evening [that is a reference to 20 June 2008] I received an email from Sally [that is a lady called Sally Thorn, a manager employed by NLA] asking me to call her. So I called and spoke to her maybe 5.10pm and she said that Barry had contacted her because Aaron [that is Mr Walter, the information technology manager at SPLA] was off ill at the moment and he needed the list of members (sic) names and addresses, and could I get into the system and get the list off for him and send it to her, she said I could call Barry to confirm that this was correct and gave me Barry's telephone number."

Then I think I can drop down to what happened the next morning:

"The next morning about 9.30am I think Sally called and asked me if I could try and get in and get a list of the members (sic) names, addresses, telephone numbers, join dates and expiry dates. She also said she might want my login details, so I should check with Barry that was okay. I tried to get in, but couldn’t and realised I had given Sally the wrong PC no. yesterday and that it was PC-16 I used. So I phoned Barry to say so and check what Sally said was true, he said it was and that I should work with Sally and send the list to her. He said to phone the office and ask them to switch PC-16 on for me. "

I phoned the office and spoke to James and asked him to switch PC-16 on for me, which he did. I logged in and opened up the database and looked at the reports to see which report might have all the info Barry wanted. I ran the report for voting since I thought this might have the expiry dates and join dates in. Then I think Barry phoned to get an update on how it was going. Then Sally phoned about 9.40am to get an update and I told her I had just got in and was having a look. I said I didn’t think there was a report that had all the info Barry wanted, and the voting report wasn’t prefixed by ‘NFRL’ so Aaron hasn’t checked it and it might be incorrect. "Sally said she thought there was a way you could run a query like in Access, I said I didn’t remember ever seeing anything like that. Then she said could she have my login details so she could go in and take a look. I gave her my system login details and database login since Barry had said this was okay. I logged off so she could get in and then she logged in, after another minute or so she said she’d have a look and then call me back. The call ended probably 9.50am." Then I can drop down to what happened at about 10.45:

"Probably about 10.45am Sally called and said she had got the list of names and addresses from the report called something like ‘Names and addresses’ but wanted the expiry dates and joining dates. I told her to try the voting report, so she ran that and it had something like 17,000 records, so she said that must include prospects and she only wanted current members. I suggested to try running it with the criteria of members only, so she did that and it had something like 5000 records. She said that seemed more realistic and she would check with Barry the number of current members. Then she said that it didn’t have address details in, so I said you could put that report and the names and addresses report into Access and merge them to get the names and addresses."

[59]Mr Walter wrote a report about the same events and a copy of that was put before me. What he said which is presently relevant is this:

"On the day in question -- the 20th June 2008 -- Mr Kennard asserts that Sally Thorn logged into his account using this Remote Desktop service. Email logs show that somebody using his account took the membership data and emailed it to Sally Thorn and one other NLA employee. "

As well as carefully logging all the above mentioned emails, I began by investigating two of them sent from Sally Thorn. Beyond the body text of the email, these pages also show the email Headers. Headers are email logs that show how the email has travelled through the world wide web, which server(s) it has interacted with and how it finally arrived at its destination. Those with sufficient technical skill can read this information and trace an email back to its source. You will note from these two header logs that both emails originated from the same computer at the NLA. This information is logged as a string of numbers, known as an IP address. An IP is a unique identifier to a particular PC or server, and is one of the ways of accurately identifying the origins or destinations of computer activity via the web. "A scan of one of Mr David Kennard's emails -- sent from his home PC -- shows no match to the IP or identifying text of landlords.org.uk found in Sally's emails. This email gives Mr Kennard's originating IP as [and a number is set out which I need not read]… Taking a careful note of this IP address I ran a series of checks with our ISA server, filtering the log to return only connections made on the day in question. The results clearly show both Mr Kennard connecting for a short period, then this second IP connecting for nearly an hour on the morning of June the twentieth."

[60]That there was indeed a transfer of this data by the mechanism explained by Mr Kennard and Mr Walter seems to be confirmed by an e-mail sent by Sally Thorn to Mr Markham on 19 June 2008 where she says: "Just spoke to Dave Kennard. His number is [and she has set out a telephone number]. If that is the question, a query is set up on Enterprise, he can run it if PC 10 is on. I will come into the NFRL office tomorrow or tonight if needs be [and she then gives a telephone number]." [Quotation unchecked.]

[61]Finally on this issue, NFRL staff sent to Mrs Kerslake an e-mail at 14.03 hours on 21 June 2008, the material part of which says this:

"As requested, please find attached proof of the information that was supplied to the NLA by Sally Thorn, who was using David Kennard's login. Instructions regarding this and gaining access through David Kennard have come from both Sally Thorn and Barry Markham, as stated by David Kennard during a conference phonecall with Suzanne Terrington at the NFRL offices at 1:45pm on Saturday the 21st June, 2008, and witnessed by Deborah Ward and Aaron Walter. A minuted transcript of this conversation, together with the original email by Sally Thorn can be found at the bottom of this email. "

This information was sent at exactly 10:28 on the morning of the 20th June, 2008. The NFRL server has logged this email and stored all the associated data. Please note that this server record is absolutely accurate, and has no margin for error. This information has been verified by the NFRL IT Manager, Aaron Walter." Again, I do not think I need read on for present purposes.

[62]The facts which I have just recited demonstrated, as it seemed to me, that what Mr Laurence said at paragraphs 10 and 11 of his first witness statement about NLA not being able to verify who were members of SPLA because of the absence of the server was just not true, as NLA knew perfectly well. If Jackson J had been told that in fact NLA had its own copy of the database of the members of SPLA, it may well be that he would not have made the orders which he did in relation to computer equipment on a without notice basis, but would have put the matter back to be considered on notice to Mr Stimpson. However, there is another aspect to this which was not explained to Jackson J. That is that the use by NLA of the database on the server amounted to breach of the requirements of section 4 of the Data Protection Act 1998. If that had been explained to him he could not possibly have made an order the effect of which was to facilitate such a breach.

[63]For completeness, Mr Sisley also relied on a number of other respects in which there had been nondisclosure of material matters. One was the misleading by NLA of its own members. A document was prepared in relation to the merger between NLA and SPLA which was entitled:

"Questions and Answers NLA/SPLA Merger"

. One of those questions was question 11:

"Have legal proceedings been initiated to reverse the merger?"

The second sentence of the quoted answer was:

"The NLA has not been advised of any legal challenge to the merger."

Mr Sisley submitted that to the knowledge of NLA that was not true. He relied upon the terms of a letter dated 7 July 2008 written to the board of directors of NLA by GSFW. That letter began by explaining that GSFW acted for Mr Stimpson. It went on:

"You need to be aware that there is disagreement among the directors of SPLA about those negotiations. [That is the negotiations between NLA and SPLA.] According to our instructions, there is no board authority for any director of SPLA to enter negotiations and no authority for any director to enter any agreement. "

There is one very important and very urgent consideration in that connection. It has come to our client's attention that a database which is the property of SPLA has been copied to or otherwise made available to your company without the authority of the board. [That is a reference to the matter which I have just been concerned with.]"

[64]On the same day, 7 July 2008, GSFW wrote a long better to Mr Markham. Amongst other matters, GSFW complained that the appointment of Mr Richard was not an appointment which fell within the terms of section 161 of the Companies Act 2006. It included a threat on the part of Mr Stimpson that if a meeting which Mr Stimpson required was not going to be held and a meeting took place at which a merger or takeover was decided upon, Mr Stimpson would have no alternative but to seek an injunction under section 994 of the Companies Act 2006. There was also reference at the end of the letter to the contention that there had been a serious breach of the duties owed by directors under section 172 and following sections of the Companies Act 2006. By 18 July 2008 Mr Markham was himself a director of NLA and therefore, submitted Mr Sisley, information within the knowledge of Mr Markham was information within the knowledge of NLA at the time of the making of the application to Jackson J.

[65]Another matter which Mr Sisley raised as a matter which ought to have been put before Jackson J was the opinion of NLA of Mr Stimpson. That, Mr Sisley submitted, could be found from the "Questions and Answers NLA/SPLA Merger" document, which was dated 17 July 2008, and which included a question and answer 3. The question was:

"Is there a role for the former NFRL President in the newly enlarged NLA?"

The answer given:

"Mr Mike Stimpson, former NFRL President, has been offered a role in the expanded organisation which would enable his wide experience and knowledge of the private-rented sector to continue to be available for the good of all landlords. NLA directors would warmly welcome his contribution but have not yet received a reply."

[66]Mr Sisley submitted that, bearing in mind the expressed fears that Mr Stimpson would damage or destroy the server or the material on it, it was appropriate for NLA to have drawn to the attention of Jackson J the view set out in the answer to question 3 which I have just quoted. Mr Sisley complains that NLA should have told Jackson J in terms that Mr Stimpson was an executive. I am not persuaded that that was actually a sound complaint when Mr Stimpson was identified by Mr Laurence as Chairman of SPLA.

[67]Mr Sisley's remaining point, which I think was sound, was that by the terms of paragraph 11 of his first witness statement Mr Laurence created the impression that Mr Stimpson would fairly readily have access to the data on the server if he had physical possession of it, whereas in fact that data was protected by a password.

[68]These last two or three points are perhaps rather minor. What is important, as it seems to me, is the concealment from Jackson J of the whole way in which the members of the executive committee who were in favour of the agreement went about securing their wishes in disregard of all the various legal impediments to obtaining that aim. That complete modus operandi was, as it seems to me, highly material to the exercise by Jackson J of his discretion.

[69]NLA has completely failed to grapple with the seriousness of these matters. There is no challenge to the facts, but there is also no explanation. No excuse is offered. There is no sign of any contrition. The only possible conclusion is that NLA resolved deliberately to suppress how those in favour of the agreement on the executive committee of SPLA had gone about achieving their ends. That NLA knew all about the obtaining of the SPLA database on 20 June 2008 was obvious. Everything else relevant, if not otherwise known, became known to NLA when Mr Markham joined as a director, which was before 18 July 2008.

[70]The material nondisclosures, as it seems to me, are so serious that I should in any event have determined as a punishment for deliberate suppression to discharge the injunctions granted by Jackson J and not granted fresh injunctions. So in all of the circumstances it seems to me that in fact the appropriate orders are to discharge the injunction of Jackson J and to refuse the application before me on behalf of the claimant.

order

"1. The Respondent do forthwith (i) surrender possession of the computer equipment and other items (the ‘equipment’) taken by him from premises at Unit 8 Wellington House, Camden Street, Portslade, East Sussex BN41 1DU ('the premises'); (ii) refrain from tampering with or using the equipment in any way while it remains in his possession; (iii) refrain from entering or attempting to enter the premises; (iv) surrender all keys to the premises; (v) refrain from coming within 100 metres of the premises; (vi) deliver up all copies of computer data taken from the equipment or from the premises or from the Applicant or from the Southern Private Landlords Association ('SPLA'); (vii) refrain from any personal contact with the Applicant, the applicant's employees or employees of the SPLA by any means other than through the Applicant's solicitors Messrs Sherrards, whose details appear at the end of this order."