Monnow Developments v Morgan  EWCA Civ 1437
Barrister: Charlie Newington-Bridges
Charlie was instructed by Neil Morgan, partner at Darwin Gray Solicitors, to represent the successful Respondent, Monnow Developments Limited.
Area of Law: Company
Summary: The Appellant, Mr Morgan, borrowed £250,000 from the Respondent, Monnow Developments, a property development company. The loan was intended to allow Mr Morgan to invest £750,000 in a financial services company, Pure Options, which was an enterprise investment scheme with potential tax benefits for investors. The investment in Pure Options was also in the form of a loan, the terms of which were specified in loan notes. The terms of the loan notes included an interest rate of 8%, but interest was to be paid when cash flow allowed. Pure Options became insolvent before any interest had been paid. Mr Morgan repaid the capital borrowed from Monnow but no interest.
The issue at first instance was whether under the agreement between the Appellant and Monnow, the Appellant was legally obliged to pay interest to Monnow in circumstances where he had received no interest on his loan to Pure Options. He contended that he was not. At first instance it was held that on a proper construction of the agreement Mr Morgan was obliged to pay interest. In the alternative, the Appellant argued that the agreement as drafted failed to reflect the true intention of the parties, namely that no interest should be paid in these circumstances and should be rectified to achieve that result. This counterclaim was also rejected by the judge.
In the appeal, it was submitted on Mr Morgan’s behalf that the judge was wrong on both counts; either he ought to have http://www.eta-i.org/provigil.html construed the contract in the Appellant’s favour or, if that was not possible, he should have rectified it to achieve the result that no interest was payable. Elias LJ, giving the leading judgment, found that on the proper construction of the loan agreement between Monnow and Mr Morgan interest was payable at the rate of 8% and that the criteria for rectifying the loan agreement were not satisfied on the facts.
The appeal judgment is interesting in at least three respects. Firstly in relation to interpretation, the court was not prepared to accept arguments that strained the language of the contract and which would lead to artificial results; it placed emphasis on the interpretation that accorded with commercial reality. Secondly, the court was concerned about the use of pre-contractual negotiation documentation in the interpretation case, but nonetheless was prepared to find that certain terms in the pre-contractual negotiations could be used in the interpretation process as they reflected common usage in the background to the contract. Thirdly, on rectification, the court was focussed on the evidence of the parties and their witnesses to determine whether or not there was an outward expression of accord; finding none, it rejected the rectification argument.
View the case commentary: Monnow Developments v Morgan – Charlie Newington Bridges – Case Commentary – June 2017
Read the full article: Monnow Developments v Morgan – Charlie Newington Bridges – Article – June 2017
Barrister: Andrew Kearney
Area of Law: Construction
Summary: Andrew Kearney appeared in the TCC for Amey in a case in which two construction adjudication decisions were found to have become finally binding due to failure to give a notice of dissatisfaction.
Read a summary and the full case published on BAILII: http://www.bailii.org/ew/cases/EWHC/TCC/2017/B13.html
Cusack v Holdsworth & Quantum Survey Management Ltd  EWHC 3084 (Ch)
Barrister: Charlie Newington-Bridges
Area of Law: Company/Commercial
Summary: Charlie Newington-Bridges represented the First Defendant in an unfair prejudice petition and claim for breach of a shareholder agreement in a 5 day trial in the High Court (Companies Court, Chancery Division).
The claim was said to be worth £3m by the Claimant. In the event the judge found that the First Defendant was only liable in respect of a small fraction of that sum. A further quantum trial will determine the price at which the Claimant is obliged to buy out the First Defendant’s shareholding in the Second Defendant company and whether the First Defendant will make a net payment to the Claimant or not.
The trial involved several days of cross-examination of the Claimant and the valuation expert. The Claimant’s expert report, in particular, was shown to have a series of flaws and the judge chose not to rely on the Claimant’s expert evidence in his judgment.
A number of legal issues arose during the trial and closing submissions. The most interesting issue, and it was an one that remain unresolved as the judge decided he did not need to make a finding on the point, was whether reflective losses or losses relating to the diminution of the value of a shareholding could be claimed in an unfair prejudice petition. The argument involved consideration of whether the rule in Johnson v Gore Wood  2 AC 1 against reflective losses applied and consideration of more recent authority such as Webster v Sandersons  EWCA Civ 830 and Wootliff v Rushton-Turner  EWHC 2802 (Ch).
In respect of the unfair prejudice claim itself and whether or not the conduct of the First Defendant was unfair and prejudicial the Judge in particular relied on the only recent unfair prejudice claim to have reached the House of Lords – O’Neill v Phillips  1 WLR 1092 and Re Guidezone Ltd  BCLC 321, in which Jonathan Parker J held that unfairness may be tested by using equitable principles and establishing the actions of the majority were such as to be contrary to good faith.
View full judgement here: Cusack v Holdsworth & Quantum Survey Management Ltd  EWHC 3084 (Ch)
Davy v Pickering
 EWCA Civ 30;  WLR(D) 38
Barrister: Guy Adams
Area of Law: Company and Insolvency
Summary: Guy Adams, instructed by Capital Law LLP, succeeded in the Court of Appeal in overturning the judgment at first instance in the Mercantile Court in Cardiff (reported at  2 BCLC 116).
The case concerned the extent of the power of the court under the new provisions in section 1032 Companies Act 2006 to make directions upon the restoration of a company to the register, both to disallow a period for the purpose of limitation and to back-date the presentation of a winding-up petition. The Court of Appeal held, following Hawkes v County Leasing  EWCA Civ 1251 (decided in the period between permission and hearing), that it was necessary to establish a causal link between the dissolution of the company and the inability to start proceedings or to present a winding-up petition before such a direction could be made.
View judgment: Davy v Pickering v Ors
View summary:  WLR(D) 38
Barrister: Martha Maher
Area of Law: Company / Insolvency
Summary: Martha was instructed by Dominic Holden of Ashfords’ London office, to act for the Incorporated Company of Scriveners in a successful disciplinary action before the Court of Faculties against Ella Imison, Scrivener Notary. This case arises out of the collapse of companies in the Insight Group including Insight Commodities Limited which went into insolvent liquidation following a public interest winding up petition before the High Court. The case concerned the professional’s part in an alleged boiler room fraud involving the sale of so-called agri-commodities investments in a number of jurisdictions with significant loss to investors. The case also raised issues concerning observance by professionals of the Money Laundering Regulations. This judgment has been published on the Faculty Office’s website.
Download judgment: Scriveners v Imison
Summary: Acted for liquidator appointed in creditors voluntary liquidation in rescinding a winding-up order
Barrister: Guy Adams
Area of Law: Commercial Dispute Resolution and Company
Summary: Guy, after initiating a Norwich Pharmacal application in Hong Kong, obtained a worldwide freezing order from the High Court in Bristol in aid of a claim for breach of duty and receipt of unauthorised commissions by company directors. The order was enforced in Hong Kong, Cyprus, Isle of Man and Western Australia, where the case is reported at  WASC 226 and was successful in freezing some £2m of assets.
Summary: James acted for a shareholder in unfair prejudice petition concerning a company formed as a joint venture to operate a waste disposal site.
Summary: James acted for a shareholder in unfair prejudice petition concerning a family company formed to invest in property.
Summary: Guy acted in complex dispute including partnership and company issues involving allegations of breach of fiduciary duty and diversion of business.