Sharma v Sharma & Anor

This judgment is in six parts, namely:

This is an appeal against a decision that the director of a dental company was not in breach of her fiduciary or statutory duty by acquiring certain dental practices for her own benefit, rather than for the benefit of the company. The central issue in the appeal is whether the shareholders with knowledge of the material facts had acquiesced in the director’s proposed course of conduct.

The dispute arises in the context of financial remedy proceedings in the Family Division. Like the judge I shall refer to all parties by their first names. The director whose conduct is in issue is Anushika Sharma (“Anushika”). Anushika is petitioner in the family proceedings and respondent in the appeal. Anushika’s former husband is Jagesh Kumar Sharma, generally known as “Sunny” and I shall so refer to him. Sunny is first respondent in the family proceedings and first appellant in the appeal.

Keshbala Sharma (“Kesh”) is Sunny’s mother. She is second respondent in the family proceedings and second appellant in the appeal.

Jagdish Sharma (“Jagdish”) is Sunny’s father and Kesh’s husband. Jagdish is third respondent in the family proceedings, but is not involved in the appeal.

Rajesh Sharma, (“Raj”) is Sunny’s brother. He is fourth respondent in the family proceedings and third appellant in the appeal.

The company whose affairs are central to this case is Aspire Dental Care Ltd (“ADC”). Anushika, Sunny, Kesh and Raj are the shareholders of ADC. Anushika is the sole director of ADC. ADC is fifth respondent in the family proceedings, although it played no part in those proceedings. It is has also played no part in the proceedings in this court.

Aspire Dental Care (UK) Ltd (“ADCUK”) is a company which is wholly owned and controlled by Anushika. ADCUK is sixth respondent in the family proceedings although it played no part in those proceedings. It is has also played no part in the proceedings in this court.

When convenient, I shall refer to Sunny, Kesh and Raj collectively as “the appellants”.

In summarising the history of events I shall include matters which were once controversial, but have now been resolved by the judge.

The only statute which is relevant to this appeal is the Companies Act 2006 (“the 2006 Act”). Section 175 of the 2006 Act provides:

“Duty to avoid conflicts of interest

(1)

A director of a company must avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company.

(2)

This applies in particular to the exploitation of any property, information or opportunity (and it is immaterial whether the company could take advantage of the property, information or opportunity).”

Section 178 of the 2006 Act provides:

“Civil consequences of breach of general duties

(1)

The consequences of breach (or threatened breach) of sections 171 to 177 are the same as would apply if the corresponding common law rule or equitable principle applied.

(2)

The duties in those sections (with the exception of section 174 (duty to exercise reasonable care, skill and diligence)) are, accordingly, enforceable in the same way as any other fiduciary duty owed to a company by its directors.”

Section 1157 (1) of the 2006 Act provides:

“Power of court to grant relief in certain cases

(1)

If in proceedings for negligence, default, breach of duty or breach of trust against —

(a)

an officer of a company, or

(b)

a person employed by a company as auditor (whether he is or is not an officer of the company),

it appears to the court hearing the case that the officer or person is or may be liable but that he acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it thinks fit.”

After these introductory remarks I must now turn to the facts.

Kesh and Jagdish came to the UK in the 1960s and by dint of much hard work they built up a number of successful businesses. These included J & K Knitwear Ltd (“JKK”), a clothing company; Up Design (Import) Ltd (“Up Design”), an import company; J & K Properties Ltd (“JKP”), a property company; Regency Banqueting Suite, a partnership which ran a banqueting suite in Wolverhampton. The two sons, Sunny and Raj, started working for the family businesses during the 1990s. The dominant figure in all these businesses was Kesh. She took all the major decisions and other family members deferred to her.

Anushika qualified as a dentist in 1999. In February 2001 she and Sunny were married. In April 2003 Anushika acquired a dental practice at Bury Knowle in Oxfordshire (“Bury Knowle”). In January 2007 Anushika acquired a second dental practice at The Avenue in Chingford (“Avenue”).

In July 2007 Anushika was offered the opportunity to acquire a third dental practice, this time at South Ham in Basingstoke. In or about July 2007 there was a family meeting to discuss the plans for Anushika’s expanding empire of dental practices. I shall refer to this as “the July meeting”.

Present at the July meeting were Anushika, Sunny, Kesh, Raj and Raj’s wife, Hina. Jagdish took up residence in Dubai during 2007 and he was not present at this meeting. It was agreed at the meeting that a company would be set up to acquire South Ham and in due course other dental practices. The shareholders would be or include Anushika, Sunny and Kesh. Anushika would run the company as she saw fit. The involvement of Sunny and Kesh as shareholders would be valuable because of their good credit rating. This should assist in obtaining funding.

In the course of the meeting Anushika raised the possibility of her acquiring some further dental practices in her own name. These would be outside the proposed corporate structure. Anushika summarised this part of the discussion as follows in paragraph 50 of her witness statement:

“I asked Kesh during the July 2007 Meeting in Sunny’s, Raj’s and Hina’s presence that if I wanted to buy practices in my own name (for example if my expenses were higher and I wanted to take more money out), would that have any adverse tax consequences? She told me that it would be less tax efficient as I would have to pay more tax on the income and not just on the dividends I would take out, but yes it would be ok (or words to that effect). I did not really understand what she was saying about dividends and tax at the time as I did not have a complete grasp of these concepts, but Kesh certainly did tell me that I could acquire further practices in my own name in the future, if I wished. Neither Sunny nor Raj raised any objections to this.”

The judge accepted that paragraph as an accurate summary of what was said at the meeting.

It was subsequently agreed that Raj would be one of the shareholders. On 20^th September 2007 the new company, Aspire Dental Care Ltd, was set up. Anushika, Sunny, Kesh and Raj were each allotted 25% of the shares. Anushika was sole director of ADC, because section 43 of the Dentists Act 1984 provided that a company may only offer dental services if the majority of its directors were qualified dentists. Sunny, Kesh and Raj were not dentists, so they were appointed company secretaries of ADC.

On 12^th December 2007 ADC entered into a contract for the purchase of South Ham and paid a deposit of £63,000. It was anticipated that Barclays would lend the balance of the purchase price, but in the event Barclays refused to do so. In those circumstances Up Design provided £573,000 to ADC. This enabled ADC to complete the purchase of South Ham on 14^th December 2007.

In June 2008 ADC acquired a dental practice at Docklands in East London (“Docklands”). In 2008 Hampshire Primary Care Trust invited tenders for setting up some new dental practices in Hampshire. Anushika tendered for one of those practices. Her tender was successful. In 2009 she set up that new practice (“Hampshire Health”) in her own name.

In September 2009 Anushika tendered for a new practice at Bridge Street, Banbury. The tender was successful. In March 2010 Anushika set up that dental practice (“Bridge Street”) in her own name.

Unfortunately there were matrimonial difficulties between Sunny and Anushika during the spring and summer of 2010. The parties separated in April 2010. Anushika commenced divorce proceedings in June 2010.

Despite those distractions Anushika continued to expand both her own network of dental practices and the dental practices of ADC. In June 2010 she acquired a dental practice in Havant, Hants (“Havant”) in her own name. During that year ADC won three tenders for new dental practices in Dagenham, Aylesbury and Amersham. ADC duly set up and operated those three practices, namely “Dagenham”, “Aylesbury” and “Amersham”.

In October 2010 Anushika purchased a dental practice on the Isle of Dogs, London E14 (“Isle of Dogs”). This practice was transferred to a new company which Anushika set up, ADCUK.

In August 2011 ADCUK acquired another dental practice at Lee-on-Solent in Gosport (“Lee-on-Solent”).

In the result therefore ADC acquired and operated five dental practices namely South Ham, Docklands, Dagenham, Aylesbury and Amersham. Anushika or her company, ADCUK, acquired and operated seven dental practices, namely Bury Knowle, Avenue, Hampshire Health, Bridge Street, Havant, Isle of Dogs and Lee-on-Solent. It is important to note that Anushika acquired two of these practices before ADC was set up. She or ADCUK acquired the other five dental practices after ADC was set up.

Meanwhile the matrimonial proceedings between Sunny and Anushika were progressing. Anushika made a financial remedy. In relation to that application disputes arose as to what were the legal and beneficial interests in the various businesses operated by the Sharma family and Anushika. On 19^th October 2011 Charles J ordered that these questions be determined as preliminary issues.

The preliminary issues were tried before Mr Justice Simon, sitting in the Family Division, during July 2012. The judge heard extensive oral evidence from the parties, much of it conflicting. On 13^th September 2012 he handed down his reserved judgment: Anushika Sharma v Jagesh Kumar Sharma and others [2012] EWHC 2529 (Fam).

Since most of the matters which the judge decided are no longer in issue, I can summarise his decision quite briefly. It was as follows:

Sunny, Kesh and Raj are aggrieved by the judge’s decision that Anushika did not act in breach of her duty as director of ADC. Accordingly they appeal to the Court of Appeal.

By an appellant’s notice filed on 15^th November 2012 Sunny, Kesh and Raj appealed against the judge’s decision that Anushika and ADCUK were the sole legal and beneficial owners of the dental practices known as Hampshire Health, Bridge Street, Havant, Isle of Dogs and Lee-on-Solent. I shall refer to these as “the disputed dental practices”.

The appellants’ case (as refined during oral argument) may be summarised as follows:

All of the detailed arguments which Mr Richard Snowden QC deployed on the appellants’ behalf at the hearing of the appeal fit within that framework.

Anushika’s position on the appeal is that she supports the findings of fact and the reasoning of the judge. Mr Alan Gourgey QC on behalf of Anushika accepts that, absent consent of the other shareholders, it would have been a breach of the "no conflict" rule for Anushika to acquire the five disputed dental practices for her own benefit. He also concedes for present purposes that it would be a breach of the "no profit" rule. The basis of this latter concession is the Court of Appeal’s decision in FHR European Ventures LLP v Mankarious [2013] EWCA Civ 17; [2013] 3 WLR 466. At the same time Mr Gourgey reserves the right to pursue this issue before the Supreme Court, if there is a further appeal to that court.

Anushika relies upon two fallback arguments set out in her respondent’s notice, in the event that the judge’s conclusions based upon paragraph 50 of her witness statement do not stand. The two fallback arguments are:

If the appellants succeed on liability, complex issues will arise as to the appropriate remedy for Anushika’s breach of fiduciary and/or statutory duty. This area of the law is now in flux: see Attorney General for Hong Kong v Reid [1994] 1 AC 324, Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (in administrative receivership) [2011] EWCA Civ 347; [2012] Ch 453 and FHR European Ventures LLP v Mankarious [2013] EWCA Civ 17; [2013] 3 WLR 466. The question of what is the appropriate remedy (if it arises) would probably have to be remitted to the trial judge for determination, preferably after the conclusion of the pending appeal to the Supreme Court in FHR.

Before addressing the issues in this appeal, I must first review the law.

The nature of a director’s fiduciary duty was defined in clear terms by the Lord Chancellor, who gave the leading speech in Aberdeen Railway Co v Blaikie Brothers (1854) 1 Macq. 461. In that case a firm of iron-founders in Aberdeen sought to enforce a contract for the manufacture and sale of iron chairs to a railway company. Mr Blaikie, the managing partner of the iron-founders, was also a director and chairman of the railway company. The House of Lords in effect dismissed the claim because of Mr Blaikie’s breach of duty. The Lord Chancellor made the following classic statement concerning directors’ duties:

“The Directors are a body to whom is delegated the duty of managing the general affairs of the Company. A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such agents have duties to discharge of a fiduciary nature towards their principal. And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect.”

A century later in Boardman v Phipps [1967] 2 AC 46 the House of Lords considered a claim for breach of fiduciary duty which arose in unusual circumstances. B was solicitor to the trustees of a will trust and TP was one of the beneficiaries. The will trust possessed 8,000 £1 shares in a company, L & H Ltd. Using knowledge which B and TP gained through acting on behalf of the trust, they purchased from elsewhere 21,986 shares in L & H Ltd. Having gained control of the company, they sold off some of the assets and made distributions to the shareholders. As a result of these actions the will trust made substantial gains, as did B and TP. The House of Lords by a majority of 3:2 held that B and TP were in breach of fiduciary duty. Accordingly they were liable to account to the plaintiff, a beneficiary under the will trust, for the profits which they had made.

B contended that he had obtained the plaintiff’s consent before he embarked upon purchasing the shareholding in L & H Ltd. He relied upon a letter which he had sent to the plaintiff in March 1959, seeking such consent. The trial judge held that the plaintiff’s consent was ineffective because B had failed to disclose all material facts to the plaintiff. That line of defence was not pursued on appeal: see the speech of Lord Cohen at page 100.

The significance of Boardman for present purposes is twofold. First, it illustrates the strictness with which the courts will enforce fiduciary duties, even where, in the absence of a breach of duty, the beneficiary would nonetheless have been unable to take advantage of the relevant potential benefit. Secondly, it establishes that the beneficiary’s consent does not absolve the fiduciary from liability, unless he has disclosed all material facts.

In Re Duomatic Ltd [1969] 2 Ch 365 the liquidators of a company sought to recover certain payments made to directors on the basis that the payments had not been authorised by a resolution of the shareholders, as required by section 191 of the Companies Act 1948. There had been no general meeting of the shareholders to approve the payments. On the other hand, at the relevant time the two directors who approved the accounts held all the ordinary shares in the company. Buckley J held that their approval of those accounts had been sufficient authorisation even though there had not been any formal general meeting.

The principle which emerges from Duomatic is that if payments are made by a company with the full knowledge and consent of all the shareholders, then those payments are duly authorised as if there had been a formal resolution to that effect at a general meeting.

In Re Home Treat Ltd [1991] BCLC 705 Harman J held that acquiescence by the shareholders of a company with knowledge of what was being done was as good as actual consent. The company in that case had two shareholders, one of whom remained silent when the objects of the company were being changed. Harman J held that his silence was as good as acquiescence.

These principles are also applicable when the question is whether the shareholders of a company have authorised a director to do that which would otherwise be a breach of fiduciary duty. In such a situation, however, the court is scrupulous to ensure that the director has made full disclosure of all relevant facts to the shareholders: see Gwembe Valley Development Co Ltd (in receivership) v Koshy (No 3) [2003] EWCA Civ 1048 at [64]-[66]; [2004] 1 BCLC 131. Although the shareholders must be made aware of the relevant facts, it is not necessary that they understand the legal characterisation of those facts, namely that they would constitute a breach of fiduciary duty: see Knight v Frost [1999] BCC 819 at 828.

In EIC Services Ltd v Phipps [2003] EWHC 1507 (Ch); [2003] BCC 931 one of the issues was whether the issue and allotment of bonus shares had been effectively authorised by the members of the company, as required by regulation 110 of Table A in the schedule to the Companies Act 1985. The thirteen shareholders had been told of the projected bonus issue and its general effect, but there was no question of their consent being sought or given. Neuberger J held that the shareholders had not thereby consented to the bonus issue. He formulated the principle as follows at paragraph 133:

“If a director of a company informs shareholders of an intended action (or a past action) on the part of the directors, in circumstances in which neither the directors nor the shareholders are aware that the consent of the shareholders is required to that action, I do not think it is right, at least without more, to conclude that the shareholders have assented to that action for Duomatic purposes. As a matter of both ordinary language and legal concept, it does not seem to me that, in such circumstances, it could be said that the shareholders have ‘assent[ed]’ to that action. The shareholders have simply been told about the action or intended action, on the basis that it is something which can be, and has been or will be, left to the directors to decide on, and no question of ‘assent’ arises.”

In that passage the words “at least without more” may be significant. It is relevant to consider whether the circumstances were such that the shareholders would be expected to voice any objections, even if they were not aware of their legal rights. When a court is considering what, if anything, can be inferred from a party’s silence, the factual context is a matter of critical importance. If the surrounding circumstances are such that it would be unconscionable for a party to remain silent at the time and only raise his objections later, then I would have thought that assent can be inferred from silence.

For completeness, I should mention that EIC went to the Court of Appeal, but not in relation to the authorisation issue.

Directors’ fiduciary duties have recently been codified in section 175 of the 2006 Act. Section 175 came into force on 1^st October 2008, a date which fell during the course of the events which are the subject of this litigation. It is common ground between the parties that for present purposes there is no material difference between the statutory duties under section 175 of the 2006 Act and the pre-existing fiduciary duties imposed by equity.

Let me now draw the threads together. I must apply the following principles in resolving the issues in the present appeal. In this summary “statutory duty” means the statutory duty imposed by section 175 of the 2006 Act.

With the benefit of this guidance from the authorities I must now come to a decision on the issues in the appeal.

The first issue is whether Anushika abandoned the relevant part of her case during the closing speech of her leading counsel, Mr Gourgey. The passage upon which the appellants rely is at pages 2 to 6 of the transcript of day seven of the trial.

In that passage Mr Gourgey said that he did not allege an agreement that Anushika could buy practices in her own name. That would be inconsistent with his primary case (upon which he ultimately failed), viz that Anushika was the beneficial owner of all ADC’s shares. What Mr Gourgey did allege, however, was that Anushika told the other three shareholders what she proposed to do and they acquiesced. He said that this was “sufficient to amount to shareholder agreement for the purposes of the application of the Duomatic principle”. Mr Gourgey said that he relied upon knowledge and acquiescence.

It can be seen from paragraphs 92 to 96 of the judgment that the judge accepted Mr Gourgey’s submissions on this issue. He found that there was knowledge and acquiescence. This constituted the kind of shareholder agreement for which Mr Gourgey contended.

I therefore reject the appellants’ first contention. The judge did not resurrect a part of Anushika’s case which had been abandoned.

The appellants’ second argument is an attack upon the judge’s findings of fact. Mr Snowden submits that the judge did not take sufficient account of the extraordinary nature of the agreement which was alleged. He says that paragraph 50 of Anushika’s witness statement was not properly put in cross-examination. Furthermore Anushika’s answers in her own cross-examination undermined that paragraph. Also the judge was wrong to accept paragraph 50 of Anushika’s witness statement, when he had “roundly rejected” other parts of her evidence.

I do not accept these submissions. First, the shareholder agreement or acquiescence (call it what you will), which Anushika alleged and the judge found proved, was not extraordinary in the circumstances of this case. The whole arrangement was highly favourable to the appellants. They were receiving 75% of the shares of a potentially valuable company, in which they were investing neither capital nor more than minimal effort: see paragraph 72 of the judgment. Secondly, the arrangement which they were putting in place meant that Anushika would continue running two practices in her own name, namely Bury Knowle and Avenue, as well as running South Ham through the new company. In those circumstances, it is hardly surprising that the appellants consented to Anushika’s plan. She would acquire some future dental practices for the company and some for herself.

In the course of cross-examination Anushika said that she did not need Kesh’s permission to acquire future dental practices in her own name. This answer is perfectly understandable. It fits with her primary case on which she failed, namely that the appellants held their shares in ADC on behalf of Anushika. It also reflects her ignorance of the law concerning directors’ duties. It does not, however, detract from her account of what was said at the July meeting, as set out in paragraph 50 of her witness statement.

That paragraph was duly put in cross-examination to Sunny: see the transcript of day 3 at page 29. That was sufficient to flag up this issue as one of the many matters of controversy between the parties.

It is quite true that the judge rejected Anushika’s evidence on a number of important issues. But that did not mean that he had to reject her evidence on everything. The judge was faced with the not unusual situation of massively conflicting evidence given by the parties to a family dispute. The judge analysed the evidence with care, putting together the pieces of the jigsaw, and he arrived at a coherent set of findings of fact. The Court of Appeal will not interfere with those findings. The judge was satisfied that paragraph 50 of Anushika’s witness statement was correct. I am not prepared to disturb that finding of fact.

I now come to the third limb of the appellants’ case. This is that, even accepting paragraph 50 of Anushika’s witness statement and the judge’s other findings of fact, nevertheless there was no effective consent by the shareholders to Anushika acquiring any further dental practices in her own name.

In addressing this ground it is important to note that the appellants agreed to give Anushika total control of ADC, not merely clinical control or day to day management, as Mr Snowden argues. One aspect of this total control was that Anushika would decide which further dental practices ADC would acquire. At the same time Anushika was expected to continue running the other two existing dental practices in her own name, namely Bury Knowle and Avenue.

An obvious issue for consideration at the July meeting was whether all future acquisitions would fall under the proposed new company or whether Anushika would continue to acquire some new practices in her own name. This issue was considered in the context of a discussion about tax liabilities. That is unsurprising. There is no evidence that any of the parties were familiar with fiduciary duties or section 175 of the 2006 Act. What is clear from paragraph 50 of Anushika’s witness statement is that the parties specifically turned their mind to the possibility of Anushika acquiring further dental practices in her own name. Kesh made it plain that she had no objection to this course, but she wanted Anushika to understand the tax consequences. In my view the words spoken by Kesh at the meeting amounted to express consent.

The position of Sunny and Raj is different. On the evidence and on the judge’s findings, both Sunny and Raj remained silent during that part of the discussion. In my view the factual circumstances of this case are such that silence amounted to consent. I say this for three reasons:

Applying the principles set out in Part 5 above, the facts of this case were such that the silence of Raj and Sunny amounted to consent. In the case of Raj, he had a further opportunity to object on the occasion after July 2007 when it was decided that he should become a shareholder.

Mr Snowden draws attention to an observation in paragraph 94 of the judgment that the appellants were not in any position to refuse Anushika’s proposal. It is not entirely clear what the judge meant by this, but I do not accept that this undermines that part of the judgment. In my view, what the judge probably meant was that since the whole arrangement was so advantageous to the Sharma family, they would not wish to object to that part of the deal. Be that as it may, the judge’s comment about not being in any position to refuse was a throw-away remark. Whether or not that comment was strictly correct is not a matter of any consequence.

A separate point urged by Mr Snowden is that Anushika did not make full disclosure. I do not accept this. She made clear the essential fact that she would acquire some dental practices for the company and some in her own name. This was a relatively informal meeting between family members, even though they had previously fallen out and been reconciled. Lawyers were not present. The parties were discussing the basis upon which they would take forward a proposed joint venture. All the material facts were clearly put before the Sharma family.

Mr Snowden submits that there were still issues to be worked out. For example, what would happen if Anushika chose to buy in her own name a dental practice close to one of the company’s dental practices? Would Anushika then compete with the company?

I accept that there were possible problems and issues that could arise in the future. The scenario canvassed by Mr Snowden is one possibility. However, the duty to make full disclosure is not so onerous that it requires the fiduciary to identify and analyse a range of unlikely, but possible, future scenarios.

Let me now draw the threads together. In my view the judge’s findings of fact cannot be challenged. On the basis of those findings the appellants, with full knowledge of the material facts, acquiesced in an arrangement whereby Anushika would be free to acquire some dental practices for the company and others for herself.

In those circumstances the issues contained in the respondent’s notice do not arise for decision. Nor do the complex issues concerning remedies for breach of fiduciary duty arise. In my view, the judge’s decision was correct. If my Lords agree, this appeal will be dismissed.