Caldero Trading Ltd. v Beppler & Jacobson Ltd & Ors

The petitioner sought winding up of Beppler & Jacobson Ltd on the just and equitable ground or, alternatively, relief under sections 994 and 996 Companies Act 2006 for unfair prejudice. The court decided three urgent interlocutory applications. It held that joinder and service out of Lawson Trading Limited and Mr Sergey Scheklanov was appropriate because their involvement was realistically arguable and material to the resolution of key issues, notably the validity and effect of alleged agency agreements and the true basis of funding (capital contribution versus loan), which affect valuation. The court refused to strike out the petition as against Mr Marcel Telser, concluding he remained a central actor in the alleged wrongdoing and could properly be joined for disclosure and to preserve company assets. On the disclosure/use application the court held that most disclosed material fell within CPR 31.22/32.12 and could be shown to a third-party funder for the purpose of the proceedings; however material produced under Mareva/freeze orders (the Telser affirmation) is not governed by those rules and remains subject to the implied undertaking, so the court would not permit its unrestricted use — although in the circumstances no further remedy was required because equivalent material was available under the CPR regime and an undertaking from TNK-BP was accepted.

Background and parties: The petitioner, Caldero Trading Limited, owned and controlled by Mr Zoran Becirovic, alleged that BJUK (Beppler & Jacobson Ltd) and others had treated his shareholding unfairly, and sought winding up on just and equitable grounds or unfair prejudice relief under sections 994 and 996 Companies Act 2006. BJUK had a Montenegrin trading subsidiary (BJM) which owned two hotels. Key respondents included Leibson (a shareholder), Belinda, Mr Igor Lazurenko, Mr Marcel Telser (director appointed October 2010), and proposed respondents Lawson Trading Limited and Mr Sergey Scheklanov, said to be beneficial owners/funders. Litigation was being funded by TNK-BP group companies, with a cross-undertaking in damages.

Nature of the application(s): Three urgent interlocutory applications were determined: (i) joinder and service out of Lawson and Mr Scheklanov as additional respondents; (ii) strike out of the petition as against Mr Telser; and (iii) injunctive relief to restrain the use of documents (disclosed witness statements, affirmations and exhibits) by the petitioner when shown to third-party funders, in particular TNK-BP.

Issues for decision:

• whether Leibson's offer to buy out the petitioner rendered joinder unnecessary or otherwise made the petition abuse/strike out;
• whether Lawson and Mr Scheklanov were necessary or proper parties such that joinder and service out should be ordered under CPR Part 19.2(2);
• whether the petition should be struck out as against Mr Telser given the abandonment of the derivative monetary claim;
• whether documents disclosed pursuant to court orders (including material produced under Mareva/freeze orders) could be shown or provided to TNK-BP and related entities for the purpose of funding and fortifying the cross-undertaking, or whether such use was improper and should be restrained and documents returned.

Court’s reasoning and conclusions:

• The court rejected the submission that Leibson’s improved offer (including a buy-out and an undertaking to submit to winding up if payment was not made) meant the petitioner had been offered all it could reasonably expect. The factual dispute as to whether contributions were capital (making the petitioner a 20–25% shareholder) or loans (making Lawson the beneficial owner) was realistically arguable and directly relevant to valuation; that issue could not be resolved satisfactorily without joining Lawson and Mr Scheklanov. CPR 19.2(2)(b) supported joinder where a new party has an issue connected to matters in dispute.
• The court granted permission to join Lawson and Mr Scheklanov and to serve out of the jurisdiction because their involvement was material and they should be bound by the outcome.
• The strike-out application in respect of Mr Telser was refused. Although the derivative monetary claim had not been pursued, Telser remained central to allegations of wrongdoing and to the preservation of company assets; injunctive and disclosure relief against directors in appropriate circumstances is permissible.
• On document use, the court held that documents disclosed under CPR Part 31/32 could be used for the purpose of the proceedings, and showing them to a third-party funder for decisions about funding and provision of a cross-undertaking fell within that purpose. However, material provided solely under a Mareva/freeze order (the Telser affirmation) did not fall within CPR 31.22/32.12 and remained subject to the implied undertaking; its supply to TNK-BP was therefore improper. Because the same material was available via witness statements and exhibits that were governed by CPR Part 31/32, the court declined to make an order limited to the Telser affirmation; instead it accepted an undertaking from TNK-BP to observe the CPR provisions and the express undertaking in the interim order and to submit to the court’s jurisdiction to enforce that undertaking.

Procedural posture: The interlocutory applications were disposed of as above and directions for a speedy trial remained in place.

This was an interlocutory judgment at first instance. The court ordered that Lawson Trading Limited and Mr Sergey Scheklanov be joined as respondents and permitted service out of the jurisdiction, because their involvement was realistically arguable and necessary to resolve core issues (notably the validity/effect of agency agreements and whether funding was capital or loan, which affects valuation). The court refused to strike out the petition as against Mr Marcel Telser, concluding he remained a central actor and properly joined for disclosure and asset-preservation relief. On the document-use application the court held that material disclosed under CPR 31/32 could be shown to a third-party funder for the purpose of the proceedings, but material produced under a Mareva/freeze order (the Telser affirmation) is not governed by those rules and is subject to the implied undertaking; no further relief was granted because equivalent material was available under CPR 31/32 and the court accepted a binding undertaking from TNK-BP to observe the express court undertaking and CPR restrictions.