Eurosail-UK 2007-4BL PLC & Ors. v Wilmington Trust SP Services (London) Limited & Anor.

A stranger to a company cannot become a de facto or shadow director by unilaterally asserting that status. De facto directorship depends on the substance and reality of the person’s participation in the company’s governing structure.

A corporate application purportedly signed by a fictitious person, where credible evidence of the signatory’s identity and authority is absent, may be struck out. An offer by another claimed officer to participate does not validate documents already purportedly signed by the fictitious person. A permission application founded on purported unilateral appointments of corporate directors is legally absurd and may in any event be struck out.

HHJ Pelling QC in the Commercial Court struck out a claim brought in the name of the Eurosail companies, granted injunctive relief, and made consequential directions: [2022] EWHC 1019 (Comm). The claim asserted that strangers to those companies had made themselves de facto or shadow directors and had thereby procured changes in control and the transfer of assets.

Keycards Holdings Inc sought permission to appeal through documents purportedly signed by “Paul Anthony”. Males LJ had ordered Keycards to provide unredacted identity documents for that person, failing which its permission application would be struck out. Keycards sought reconsideration, asserting that compliance was impossible and proposing another claimed officer instead. The central issue was whether the application could proceed despite the unresolved identity and authority of its purported signatory.

1. The request for reconsideration did not displace the earlier order. The application for permission to appeal was struck out and certified as totally without merit.

2. Males LJ was satisfied that the person who purportedly signed the appellant’s notice as “Paul Anthony” was fictitious. The heavily redacted driving licence concealed the holder’s surname; the asserted London address could not be used for service; and Keycards supplied neither a credible explanation nor other documents capable of establishing the person’s existence, office or authority. The inconsistencies in Keycards’ account were not answered.

3. The offer by Mr Artemakis Artemiou to provide his own passport could not cure the defect. It did not validate the appellant’s notice, earlier documents or notices purportedly signed by a non-existent person. The court also took account of a prior contempt finding that steps apparently taken in Mr Artemiou’s name had in fact been taken by Mr Hussain.

4. The proceedings were vexatious and abusive. Independently, even if the notice had been signed by a genuine and authorised person, Males LJ would have struck out the permission application. He endorsed the reasoning in BMF Assets No 1 Limited v Sanne Group Plc [2021] EWHC 3306 (Ch): a stranger cannot make themselves a director merely by declaring an intention to assume that role. De facto directorship requires a multifactorial examination of what has actually occurred and whether, in substance and reality, the person participates at the company’s governing level.

• Court of Appeal (Civil Division). On Keycards’ request for reconsideration of an order requiring proof of the purported signatory’s identity, the court struck out its application for permission to appeal and certified it totally without merit.
• High Court of Justice, Queen’s Bench Division, Commercial Court. HHJ Pelling QC struck out the underlying claim, granted an injunction against similar future conduct, and made directions concerning identification of persons issuing further applications: [2022] EWHC 1019 (Comm).