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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Liberty Investing Ltd v Sydow & Ors  EWHC 608 (Comm) (13 February 2015)
Cite as:  EWHC 608 (Comm)
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QUEEN'S BENCH DIVISION
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
|LIBERTY INVESTING LIMITED||Claimant|
|- and -|
|(1) KARL GORDON SYDOW|
|(2) DANCE WITH MR. D LIMITED|
|(3) FREEDOM RIDERS TOPCO LIMITED|
|(4) FREEDOM RIDERS LIMITED||Defendants|
Mr. A Hunter QC and Mr. J Pobjoy (instructed by Quinn Emanuel Urquhart & Sullivan LLP) appeared on behalf of the Claimant.
Mr. R Anderson QC and Mr. Daniel Burgess (instructed by King & Wood Mallesons) appeared on behalf of the Defendants.
Crown Copyright ©
MR. JUSTICE LEGGATT:
"Each of the Shareholders shall exercise all voting rights and powers of control available to him in relation to the Company" [i.e. Topco] "to procure that, save with the prior written consent of the Investor" [i.e. the claimant], "the Company shall not" - subject to certain exceptions not relevant for present purposes - "effect or propose any of the matters referred to in Schedule 6."
"As a separate obligation severable from the obligations in clause 10.1, the Company agrees that, save with the prior written consent of the Investor, it shall not [subject to the same exceptions] effect or propose any of the matters referred to in Schedule 6.
"Further, it was an implied term of the SSA [i.e. the Shareholders' Agreement], implied as obvious and/or inherent in the nature of the Agreement, that Mr. Sydow, as a party to the SSA who was also the controlling director and sole shareholder of DWMD and a director of FRL and Topco, would cooperate in and/or not prevent compliance by DWMD, FRL and Topco with their obligations under the SSA."
"The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls."