Paul Andrew Whittaker v Bertha UK Limited

An order for sale under Civil Procedure Rules 1998 Part 73.10C is discretionary. Where a creditor proposes to buy charged shares, the court may require marketing and competitive bidding rather than adopt a single valuation. On appeal, the question is whether the order fell within the broad confines of that discretion: the appellant must show that irrelevant matters were considered, relevant matters omitted, or the result could not reasonably follow from a proper analysis.

For a proposed unfair-prejudice buyout, the usual valuation date is the date of the buyout order. An earlier date requires recognised fairness-based justification and is not available as a one-way bet. Enforcement need not be deferred for an unissued claim that cannot realistically produce a materially higher recovery.

Bertha obtained charging orders over the appellant’s shares in Dogwoof Ltd to secure unpaid costs and brought a Part 8 claim for an order for sale. On 9 June 2025 Deputy Master Jefferis made a suspended order requiring the shares to be marketed, with bids to be received and a minimum price based on valuation evidence.

The appellant appealed on limited grounds concerning alleged suppression of the share value and prejudice to a proposed unfair-prejudice petition under Companies Act 2006 section 994. The central issues were whether the order should have been deferred pending that proposed claim, whether an earlier valuation date was realistically available, and whether the valuation evidence justified appellate intervention.

1. Disposition. The appeal was dismissed on Grounds 5 and 6. Permission under the ECRO to issue a petition under section 994 of the Companies Act 2006 was refused. Costs were reserved for determination on paper.
2. ECRO and unfair prejudice. CPR PD 3C did not prescribe exclusive grounds for permission to proceed despite an extended civil restraint order. The approach in Needham v Ellis [2024] EWCC 29, involving a real rather than fanciful prospect of success, was potentially relevant but not exhaustive. The court retained a wider discretion to refuse permission where pursuit would be unjust. The Part 8 hearing could not determine the merits of the proposed unfair-prejudice claim or make findings about gross misconduct without proper pleadings, disclosure, witness statements and cross-examination. Nevertheless, the court could assess whether the claim justified delaying enforcement. The claim was unissued, related employment claims had been dismissed as out of time, the appellant had delayed pursuing it, and there was no credible evidence of a materially higher buyout. Refusing permission and giving the proposed claim no weight was therefore justified.
3. Valuation date. For a buyout order under section 994(2)(e), the usual valuation date was the date of the buyout order. Applying Profinance Trust SA v Gladstone [2001] EWCA Civ 1031, [2002] 1 WLR 1024, an earlier date required recognised fairness-based circumstances or conduct justifying departure from the usual rule. The appellant’s consistent resistance to the contractual transfer machinery, followed by a change of position after the valuation fell, amounted to a one-way bet. He therefore had no real prospect of establishing that 16 August 2022 should be the valuation date.
4. Order for sale. The discretion under CPR Part 73.10C was broad. By analogy with Bagum v Hafiz [2015] EWCA Civ 801, [2016] Ch 241, an order could be tailored to address competing interests. The Judge did not simply transfer the shares to Bertha at the reported valuation. He required an open bidding process and used the valuation only as a minimum price. That was a reasonable response to the valuation concerns and fell within the permissible scope of the discretion. Ground 5 was dismissed.

1. Deputy Master Jefferis: On 9 June 2025, made a suspended order for sale of the appellant’s shares following Bertha’s Part 8 enforcement claim. No separate citation for the decision is stated in the judgment.
2. High Court (Business and Property Courts): Permission to appeal was granted on two grounds only. The appeal was dismissed, and permission to issue the proposed unfair-prejudice petition was refused.