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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Dinglis v Dinglis & Ors [2020] EWHC 1363 (Ch) (01 June 2020) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2020/1363.html Cite as: [2020] 2 BCLC 607, [2021] 1 All ER 685, [2021] 1 All ER (Comm) 649, [2020] EWHC 1363 (Ch) |
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BUSINESS AND PROPERTY
COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
London EC4A 1NL |
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B e f o r e :
____________________
Paul Andrew ![]() | Petitioner |
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- and - |
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(1) Andreas ![]() (2) ![]() (3) ![]() ![]() ![]() ![]() |
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____________________
Daniel Lightman QC and Gregor Hogan (instructed by BDP Pitmans LLP) for the Respondents
Hearing date: 22 May 2020
____________________
Crown Copyright ©
Adam Johnson QC
Background
"3.1 the Shares [i.e., Paul's shareholding] shall be valued as at 25 July 2019 (the 'Valuation Date'); [and]
3.2 the value of the Shares shall be subject to the adjustments identified in the Schedule to this Order …".
The Coronavirus Application
"An order that the share purchase order of Adam Johnson QC (sitting as a Deputy High Court judge) dated 5 December 2019 … be varied so as to permit the…Respondents
… (as a matter of law) to advance the case at the Valuation Trial … that for the purposes of the valuation of the Petitioner's shares… the value DPL should be adjusted downwards to
reflect
such a
reduction
in the value of the
properties
held by DPL and/or or any other damage caused to DPL as may
result
from the effects of the Coronavirus (Covid-19) pandemic between 25 July 2019 ('the Valuation Date' …) and the date of commencement of the Valuation Trial … ".
"At the Valuation Trial, it shall be open to theRespondents
(as a matter of law) to advance a case for the purposes of the valuation of the Shares:
…
The value of [DPL] be adjusted downwards toreflect
such
reduction
in the value of the
properties
held by DPL and/or any other damage caused to DPL as may
result
from the effects of the coronavirus (COVID-19) pandemic between the valuation date and the date of the commencement of the Valuation Trial."
The Rival Contentions
"Theserestrictions
are very likely, indeed almost certain, to have a substantial and prolonged effect on the housing/
property
market generally and on DPL's business and assets."
"DPL is a company whose sole activity isproperty
holding and development and whose principal assets are approximately 80
properties.
As a
result
of the Coronavirus pandemic, it is facing and is likely to continue to suffer a significant impact as a
result
of (sic.) this wholly unprecedented and unavoidable event. For example, over the last quarter, 60% of DPL's commercial
rental
income and 16% of its
residential
![]()
rental
income have not been paid because of the lockdown with around half of DPL's commercial tenants asking for
rent
free periods, and others asking for a
reduction
in
rent.
Of DPL's commercial tenants, around 95.5% are
retail
based, the balance being
restaurants
…
Around 20 flats were in the process of beingredeveloped
by DPL prior to lockdown and those building works have ceased completely. In consequence, DPL is incurring further costs (including borrowing and insurance costs) while the development work
remains
incomplete and those flats have no
real
prospect of generating any income for some time to come."
"73 Once unfair prejudice is established, the court is given a wide discretion as to the relief
which should be granted. Although [the statutory predecessor of s.996(1)] speaks in terms of
relief
being granted "in
respect
of the matters complained of", the court has to look at all the
relevant
circumstances in deciding what kind of order it is fair to make. It is not limited merely to
reversing
or putting right the immediate conduct which has justified the making of the order. In
Re
Bird Precision Bellows
Ltd
[1986] Ch. 658 at p.669, Oliver L.J. described the appropriate
remedy
as one which would "put right and cure for the future the unfair prejudice which the petitioner has suffered at the hands of the other shareholders of the company". The prospective nature of the jurisdiction is
reflected
in the fact that the court must assess the appropriateness of any particular
remedy
as at the date of the hearing and not at the date of presentation of the petition; and may even take into account conduct which has occurred between those two dates. The court is entitled to look at the
reality
and practicalities of the overall situation, past, present and future.
74 It was, therefore, incumbent on the judge to consider the whole range of possible remedies
and to choose the one which on his assessment of the existing state of
relations
between the parties was most likely both to
remedy
the unfair prejudice already suffered and to deal fairly with the situation which had occurred. The principal criticism of his judgment on this issue, is that it concentrated on the precise nature of the prejudice already suffered (i.e. the non-payment of the dividend), but failed to look at matters in the round. In particular, no adequate
regard
was paid to the fact that the
respondents
had in effect helped themselves to the dividend to which Mr Grace was undoubtedly entitled, nor to what is said to be the overwhelming likelihood that similar acts of prejudice will be suffered in the future."
" … if theRespondents
are not permitted to argue for an adjustment based on the Coronavirus pandemic, the whole impact of an entirely unforeseen, unprecedented act of God will be visited upon the
respondents.
It is submitted that such a
result
would be profoundly inequitable."
"A power of the court under these Rules to make an Order includes a power to vary orrevoke
the order."
Discussion and Conclusions
" … do not finally decide anything as of right between the parties: they include case management decisions which govern the procedure by which those rights will be determined … and also all orders providing parties with some interimremedies
or protections pending that the determination… ."
"The term 'final order' is used in this paragraph to describe an order which determines between the parties the issues which are the subject matter of the litigation and which give rise to a cause of action estoppel between them."
"I agree that in its terms the rule is not expressly confined to procedural orders but … I am however in no doubt that CPR 3.1 (7) cannot bear the weight which Mr Grimes' argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge toreview
his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the Judge to
review
his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, grounds for invoking the rule will generally fall into one or other of two categories of (i) erroneous information at the time of the original order, or (ii) subsequent events destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for
revocation
or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent) can be made, then any party can
return
to the trial judge and ask him to
reopen
any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interest of justice, and of litigants generally,
require
that a final order
remains
unless such proper grounds for appeal exist."
"[CPR 3.1(7)] … is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal."
Conclusion