Greenwich Millennium Exhibition Ltd. v New Millennium Experience Company Ltd & Anor

The New Millennium Experience Company Ltd ("NMEC") is a company in public ownership which operated the Millennium Dome in Greenwich. In December 2001 it was put into members’ voluntary liquidation by a resolution of its sole shareholder, Lord Falconer of Thoroton. Greenwich Millennium Exhibition Ltd ("GMEL") is a company which put on a millennium exhibition at the Royal Naval College, Greenwich in 1999, and was involved in trade mark disputes with NMEC. It now claims to have enormous claims (which have varied between £35 million and £1.6 billion) against NMEC on the ground that HM Government and NMEC conspired to ruin GMEL’s business.

In the course of dealing with GMEL’s claims the liquidators of NMEC discovered that by an administrative oversight Lord Falconer had not been entered in the register of members of NMEC. In consequence Lord Falconer (and other former shareholders) obtained an order from Lightman J in April 2002 rectifying the register with retroactive effect.

GMEL claims that the order of Lightman J should not have been made and that the statement of assets and liabilities made by the directors at the time of the voluntary liquidation contained material omissions. In these applications the principal issues are whether the order of Lightman J should be set aside, with the consequence that NMEC would not be in liquidation at all, and (if it is not set aside) whether (as GMEL contends) the statement of assets and liabilities is a nullity by virtue of its non-compliance with section 89 of the Insolvency Act 1986, with the effect that, under section 90, the winding up is not a members’ voluntary winding up, but a creditors’ voluntary winding up. These applications involve a number of questions of company law, including standing to set aside an order for rectification of the register of members and the effect of alleged omissions in a statement of assets and liabilities.

NMEC was incorporated on 16 October 1995 under the name Judgeblow Limited. It was acquired by a company called The Imagination Group Limited ("Imagination") in November 1995, when its two issued shares were transferred and registered in Imagination’s name. On 23 November 1995 it changed its name to Millennium Central Limited.

Imagination was one of the bidders to deliver and operate the proposed Millennium Exhibition to be held at Greenwich.

On 11 December 1996 a share option agreement was entered into between Imagination, the Secretary of State for National Heritage and the Millennium Commission ("the Commission"). Under this agreement an option was granted to the Secretary of State (or a nominee of the Secretary of State or the Commission) to acquire the two issued, fully paid shares in NMEC.

In January 1997 the then Government announced the basis upon which the Millennium project would go ahead. The share option was exercised on 6 February 1997, which had the ultimate effect of bringing NMEC into public ownership. It was both a company incorporated under the Companies Act 1985, and a non-departmental public body, which had the effect of giving rise to various requirements regarding, in particular, financial monitoring and control. It was funded by lottery grant from the Commission, the use of which was governed by the terms and conditions set out in a grant memorandum.

The Commission nominated Millennium Central Holdings Limited ("Holdings") as the transferee of the shares. Holdings undertook with the Commission that the shares would be transferred by it to the Chancellor of the Duchy of Lancaster, the Rt Hon Roger Freeman MP. Imagination executed a transfer of the two issued shares to Holdings.

The day after the registration of the transfer of the shares to Holdings, a further share transfer from Holdings to Mr Freeman was executed.

On 14 February 1997 by written resolution of its sole shareholder, new articles of association for NMEC were adopted. The articles required the registered member to be a Minister of the Crown and put a mechanism in place to ensure that this remained the position.

Once in public ownership, NMEC was charged with implementing the Government’s and the Commission’s objective that the nation should celebrate together the year 2000 and the arrival of the new millennium. The focus was to be the Millennium Experience Project, comprising the Dome at Greenwich and a linked national programme of country wide-events and activities.

In May 1997, following the general election, a share transfer was executed transferring the entirety of the issued share capital of NMEC from Mr Freeman to the Secretary of State for National Heritage (the Rt Hon Chris Smith MP).

Following a review by the new Government, on 19 June 1997 the Prime Minister announced that the Millennium project would go ahead.

A transfer of the shares to the Minister Without Portfolio, the Rt Hon Peter Mandelson MP, from the Secretary of State for National Heritage was executed on 25 June 1997.

On 2 July 1997, following a resolution passed on 30 June 1997, NMEC’s name became its current name. From that date the exhibition project became known as the Millennium Experience.

Following his resignation from the Government, and as required by NMEC’s articles of association, on 23 December 1998 a share transfer of all the shares in NMEC in favour of the Secretary of State for Culture, Media and Sport (as a corporation sole) was executed by Mr Mandelson.

On 5 January 1999 a share transfer of the shares in NMEC in favour of Lord Falconer of Thoroton, Minister of State, Cabinet Office, was executed by the Secretary of State.

On 18 December 2001 Lord Falconer, as sole shareholder, passed a resolution placing NMEC into members’ voluntary winding up. The directors made the required statutory declaration of solvency. Mr Richard Heis and Mr Stephen Treharne of KPMG were appointed as liquidators ("the Liquidators")

Mr Christopher Moore was the founder of GMEL. He had been a lecturer in mathematics, and during the 1980s was a partner in a City firm where he developed financial research and investment software. He had a long-standing interest in art, and had organised exhibitions in galleries. In 1995 he formed the idea of organising an exhibition in Greenwich to celebrate the Millennium.

In 1996 GMEL (and Greenwich Millennium Festival Ltd) were incorporated and lodged various "Millennium" trademark applications. GMEL put on a millennium exhibition at the Royal Naval College Greenwich in 1999, and entered into merchandising agreements and/or corporate hospitality and other commercial arrangements with a number of organisations, including LBC, PriceWaterhouseCoopers and Telecom UK. The exhibition was opened by HRH Prince Michael in April 1999.

The uncontested evidence of the Liquidators is that GMEL has two directors, one of whom, Mr Moore, has been (according to his own evidence) suffering from to mental illness, and the other, Quintus Management Ltd, is a corporate director based in Jersey and has not taken any part in the proceedings. Its shareholder is an entity called FX24 Inc which is said to be based in Jersey, but investigations by the Liquidators have not revealed the existence of any such entity in Jersey, and their evidence is that it has an address on the Polynesian island of Niue, which appears to be the office of Panamanian lawyers.

GMEL’s accounts show that during the year ended 30 June 2000 (the most recent accounts filed at Companies House) it traded at a loss of £459,000 and its liabilities would exceed its assets by approximately £528,000 were it not for the fact that Mr Moore had valued its trademarks in the balance sheet at £15 million. That valuation is based on an assumption that GMEL’s claims against NMEC and the Liquidators are successful.

NMEC and GMEL were involved in a number of trade mark registration disputes. NMEC made applications in November 1997 and April 1998. GMEL made applications in May and July 1999. Each company opposed the other’s applications. In October/November 2001 NMEC withdrew its applications and its opposition to GMEL’s applications. By then the point had become academic to NMEC. The disputes were thus disposed of. Costs orders were made in favour of GMEL. The total costs ordered amounted to £3,520.

The nature of GMEL’s claim against NMEC, which was made first in 1999, is set out in letters of December 13, 2001 from its then solicitors, Messrs Finers Stephens Innocent,to Messrs Simmons & Simmons (NMEC’s solicitors) and of December 18, 2001 from GMEL to the Chairman and the Board of Directors of NMEC.

In the letter to NMEC, GMEL said that in the latter part of 1997 HM Government and/or NMEC and/or their agents decided that they wanted to use GMEL’s trade names and thereafter set out on a sustained and deliberate course of conduct to frustrate GMEL’s applications, the purpose of which was to enable them to procure funding and/or sponsorship for the Dome to the serious detriment of GMEL. When the Dome business collapsed and NMEC had no further use for the trademarks they conceded all applications and oppositions which had been designed to frustrate GMEL, using their substantial financial resources and political clout for political objectives. Accordingly GMEL had claims for misfeasance (including misfeasance in public office); malicious falsehood/misrepresentation; inducement of breach of contract; passing off/infringement of trademarks; breach of confidence; illegal use of state aid; abuse of dominant position; conspiracy to injure. The estimate given in that letter of the liability of NMEC was £1.6 billion, and was said to be supported by some 18,000 pages of documentation. The letter to Simmons & Simmons was designed to put Simmons & Simmons on notice that any attempt to put NMEC into members’ voluntarily liquidation would be met with an application by GMEL for an injunction unless NMEC made full disclosure of the claims.

There are two live issues. One relates to the membership of NMEC and the retrospective rectification of the register. The other relates to the statutory declaration of solvency made by the directors in connection with the liquidation of NMEC.

As a result of an administrative error Lord Falconer was not entered in the register of members following the transfer of shares to him (as was the case also with two previous transfers). Lord Falconer (and the prior two shareholders) obtained from Lightman J an order rectifying the register. Notice was given to the Liquidators and to the directors of NMEC, but not to GMEL. GMEL claims in these proceedings that the order of Lightman J, rectifying the register of members with retrospective effect to show Lord Falconer as member, should be set aside. If successful, the effect of GMEL’s application would be that NMEC would not be in liquidation.

The alternative claim of GMEL is for declaratory relief that NMEC is in creditors’ liquidation rather than members’ liquidation, on the basis that the directors’ statutory declaration of solvency is invalid. GMEL’s case is that the statement of assets was, to the knowledge of the directors, false in material respects, with the result that it is not to be regarded as a statement of assets and liabilities. The consequence, GMEL says, is that the statutory declaration is of no effect by virtue of section 90 of the Insolvency Act and therefore, by virtue of section 90, the liquidation is a creditors’ voluntary winding up. The skeleton argument of Mr Hyde, junior counsel for GMEL, relies on the well-known decision on the criminal law, R v. Kylsant [1932] 1 KB 442, that a written statement may be false by virtue of knowing omissions as well as by false statements.

By their own application the Liquidators seek declarations that NMEC has been (or is deemed to have been) in members’ voluntary winding up since 18 December 2001, and the Liquidators were (or are deemed to have been) validly appointed liquidators.

By letters dated 9 January 2002, the Liquidators invited creditors formally to submit their claims. Under cover of a letter dated 15 February 2002 GMEL lodged a proof of debt. The proof of debt was for £35 million damages, or alternatively £96 million, as a percentage of the sponsorship received by NMEC, or alternatively exemplary damages of £160 million.

The proof of debt was rejected by a letter of 1 May 2002 except as regards the sum of £3,520 relating to the trademark applications costs. The proof of debt was rejected in principle on the ground that GMEL had not produced any relevant evidence.

By r 4.83 of the Insolvency Rules 1986, a creditor who is dissatisfied with a rejection of proof may apply to the court for the decision to be reversed or varied. On 5 July 2002 GMEL commenced proceedings in the Companies Court, returnable in October 2002, challenging the rejection of its proof of debt but (as in the case of the proof of debt itself) without prejudice to its contention that NMEC was not in liquidation. That contention was originally made on the basis that there was a defect in title to the shares because of an absence of consideration passing between Imagination and Holdings.

On 10 October 2002 directions were made by Mr Registrar Baister, which proceeded on the basis of a hearing of the appeal against rejection of the proof of debt in January 2003. On 14 November 2002 GMEL issued an application to stay the proof of debt proceedings until after the hearing of the current proceedings, and it sought and obtained ex parte from Pumfrey J an order abridging the time for service of its application for a stay.

The application for a stay of the proof of debt proceedings failed before me on 20 November 2002, as did an application for disclosure. An extension of time to serve evidence was granted to GMEL. Costs were awarded against GMEL in the sum of £6,000 plus VAT. These costs have not been paid.

On 6 December 2002 the Court of Appeal, on paper, refused GMEL permission to appeal from my decision refusing a stay of the proof of debt proceedings.

On 16 December 2002 Mr Registrar Baister held a case management conference, at which he ordered GMEL to file evidence by 8 January 2003, failing which it be debarred from prosecuting the application. On 30 December 2002 GMEL appealed against Mr Registrar Baister’s order. On 7 January 2003 I declined to stay the proof of debt proceedings (applied for on the basis of Mr Moore’s ill-health), but I extended the time for service of evidence by GMEL to 15 January 2003.

On 15 January 2003 Hart J adjourned the hearing of the proof of debt application to April and extended the time for service of evidence to 14 March, 2003.

On 20 January 2003 GMEL secured an adjournment of its appeal to the Court of Appeal against my refusal to stay the proof of debt proceedings until after the determination of the current GMEL applications.

On 5 March 2003 Rimer J dismissed GMEL’s appeal against Mr Registrar Baister’s order of 16 December 2003. Costs of £6,000 were awarded against GMEL. They have not been paid.

On 10 March 2003 Jacob J gave a further extension of a week for GMEL to serve evidence in support of its appeal against rejection of the proof. The evidence was served on 21 March 2003.

Also on 21 March 2003, following an oral hearing after various adjournments, the Court of Appeal (Peter Gibson LJ) dismissed GMEL’s application for permission to appeal against my refusal of a stay pending determination of the current proceedings.

On 9 May 2003 Mrs Registrar Derrett refused a stay of the proof of debt proceedings until after determination of the current proceedings.

On 16 May 2003 GMEL issued a further application in the proof of debt proceedings seeking (in effect) that issues as to the validity of the liquidation to be heard in the current proceedings be heard as a preliminary issue in the proof of debt proceedings. This further "belated attempt to have the issues raised by the [current applications] heard in advance of [the proof of debt appeal]" was rejected by Rimer J on 22 May 2003. Costs in favour of the Liquidators were assessed at £3,500 plus VAT. They remain unpaid.

On 2 June 2003 GMEL made another application to adjourn the proof of debt proceedings, until October 2003, on the grounds of the ill-health of Mr Moore. This application was refused by Neuberger J. Costs in favour of the Liquidators were ordered in the sum of £3,000. They have not been paid.

On 6 June the proof of debt application came on for hearing before Hart J. He declined an application to adjourn the proceedings on the grounds of Mr Moore’s ill-health, but decided that the application to adjourn should itself be adjourned, but that he should proceed with the substantive application unless and until it became clear that a fair hearing would not be possible in the absence of Mr Moore. Mr Acton, on behalf of GMEL, then said that GMEL could not continue, and informed Hart J that it wished to discontinue. GMEL produced a notice of discontinuance, and Hart J accordingly ordered that the proceedings be discontinued and that GMEL pay the Liquidators’ costs. I was told that GMEL has subsequently sought to appeal against the order.

The broad effect, therefore, was that GMEL’s consistent strategy was to avoid the proof of debt proceedings being heard, at any rate before these proceedings. When that strategy failed, and when it failed to obtain wide-ranging disclosure, it abandoned its challenge to the rejection of the proof of debt although it now seeks to revive it.

On 30 June 2003 GMEL commenced proceedings against the Secretary of State for Culture, Media and Sport, the Commission and NMEC for damages. The claim against the Secretary of State and the Commission was for breach of statutory duty committed in violation of the State Aid provisions of the EC Treaty, and against NMEC for trademark infringement, passing off, malicious falsehood, inducement of breach of contract and conspiracy to injure and/or employ unlawful means.

By letters dated 12 February 2002 GMEL first asserted to Lord Falconer and the Liquidators that NMEC was not in liquidation. In March 2002 GMEL began judicial review proceedings which challenged the decision of Lord Falconer to place NMEC into members’ voluntary liquidation on the grounds (a) that because of an absence of consideration passing between Imagination and Holdings of the shares in 1997, all subsequent transfers were invalid and Lord Falconer was not a member of NMEC as at December 2001; and (b) that the placing of NMEC into voluntary liquidation was unlawful as it was an attempt by the Government to avoid its alleged liability (founded on an alleged agency relationship) to discharge all the debts of NMEC (including those of GMEL) and the Government was accordingly liable for NMEC’s debts.

As a result of GMEL’s request to inspect the register of members it came to the Liquidators’ attention that the register had not been made up since June 1997 and that it did not therefore reflect the transfers of the shares from Mr Mandelson to the Secretary of State and from the Secretary of State to Lord Falconer.

The transfer of shares from Imagination to Holdings was registered, as was the transfer from Holdings to Mr Freeman, and the subsequent transfers to the Secretary of State for National Heritage, and then to Mr Mandelson.

But thereafter further share transfers were not registered in the register of members. The transfer from Mr Mandelson to the Secretary of State was registered in the register of transfers, but not in the register of members, as was the transfer executed by the Secretary of State in favour of Lord Falconer of Thoroton.

The share transfers from Mr Mandelson to the Secretary of State and from the latter to Lord Falconer were sent to NMEC under cover of a letter from the Treasury Solicitor on 2 February 1999. A request was made for a share certificate. A sealed share certificate was returned by NMEC under cover of a letter dated 8 February 1999. On 23 February 1997 the transfers were noted at a board meeting of NMEC and the issue of the share certificate ratified.

Subsequently NMEC’s financial statements for 1999 and 2000 referred to the transfer to Lord Falconer. NMEC’s 1999 annual return was made up to 16 October 1999. It was signed on 4 November 1999. It recorded registration on 23 December 1998 of the transfer from Mr Mandelson to the Secretary of State. It also recorded Lord Falconer as the current member by virtue of the further transfer dated 5 January 1999.

Accordingly an application was made on 19 April 2002 by Lord Falconer and the other former shareholders whose names had not been entered on the register of members ("the Shareholders") under section 359 of the Companies Act 1985. The application was for rectification of the register of members of NMEC by recording the transfers as from 17 February 1997 in the case of the transfer to Mr Freeman, as from 23 December 1998 in the case of the transfer to the Secretary of State for Culture, Media and Sport, and from 5 January 1999 in the case of the transfer to Lord Falconer.

The application was supported by witness statements from Mr Creasy, of the Office of the Legal Adviser to the Department for Culture, Media and Sport, and by Mr Treharne, one of the Liquidators.

Mr Creasy gave evidence concerning the circumstances in which the failure to register the transfers had been made. He also gave evidence about the judicial review proceedings by GMEL, and drew attention to the fact that GMEL had challenged the resolution by Lord Falconer, as sole shareholder, to place NMEC into members’ voluntary winding up, on the ground that Lord Falconer was not a shareholder at the relevant time because of an alleged absence of consideration passing between Imagination and Holdings. Mr Treharne gave evidence concerning the steps taken by the Liquidators since their appointment, and also made disclosure about GMEL’s claim to be a creditor of NMEC for £96 million, or alternatively, £35 million, and about its challenge to the liquidation on the ground that the transfer from Imagination to Holdings, and all subsequent transfers, were invalid, but pointed out that GMEL had not relied on a defect in the register of members.

In his written submissions to Lightman J, Mr Davis-White QC indicated that the Liquidators consented to the application, and that the directors of NMEC had been given notice of the application and their non-opposition had been sought but submitted that notice need not be given of the application to GMEL because (a) the rectification of the Register did not effect GMEL’s claim that title was defective for want of the earlier consideration; (b) GMEL did not have any legitimate interest in the relief sought, because the persons with a real interest were prima facie not the creditors, but the members, and the existence of a members’ voluntary liquidation did not affect the right of GMEL to enforce, or litigate its claim NMEC; and (c) even without rectification, there would be nothing to stop Lord Falconer putting the company into voluntary liquidation.

On the same day as the application was made Lightman J made an order for retrospective rectification. The order of Lightman J led to further judicial review proceedings by GMEL commenced on 19 July 2002 challenging the decision to rectify the register.

In the Administrative Court on 1 October 2002, Burton J stayed both sets of judicial review proceedings to give an opportunity to GMEL to bring proceedings in the Companies Court. GMEL’s applications currently before the court were launched on 28 October 2002 with a return date of 20 February 2003.

Directions in these proceedings were made by Patten J on 20 February 2003.Patten J rejected GMEL’s application for cross-examination of Mr Chapman of the Treasury Solicitor’s Department and of the relevant official from the Department of Culture Media and Science. The hearing of these proceedings was ordered to be expedited with a 2 day estimate. He left for the judge hearing these applications the question whether there should cross-examination of Mr Treharne and Mr Adams (finance director of Imagination) on their witness statements. GMEL subsequently indicated that it did not propose to cross-examine Mr Adams, and no application was made before me to cross-examine Mr Treharne.

On the day of the hearing before me GMEL sought to adduce expert accountancy evidence. The evidence which GMEL sought to put forward was that of Mr David Mond, an accountant, who stated his qualifications as having practised in the area of corporate insolvency for many years and being the senior partner of a firm of chartered accountants. His evidence did not comply with CPR 35.10. It did not contain the statement that he understood his duty to the court and had complied with that duty, or give the substance of all material instructions. Nor did it contain the statement of truth required by CPR 35PD 2.3. These are not purely formal requirements. They are designed to ensure that expert evidence can be relied on by the court. I refused to admit the evidence on the ground that it was much too late (and without any adequate explanation for the failure to apply before) and that it did not comply with the rules on expert evidence.

The parties’ contentions

GMEL’s asserts that NMEC is not (or should not be) in liquidation at all on the basis that no members’ resolution has been passed, and that it is entitled to apply to set aside the order on that ground. Other objections to the order are no longer pursued. GMEL asserts that it is a creditor of NMEC and that it has been prejudiced by the liquidation. Accordingly it says that it has sufficient legitimate interest to seek to set aside the order. The Shareholders say that GMEL does not have sufficient interest to seek to set aside the order, and that in any event it has not been prejudiced.

Mr Oliver QC’s argument for GMEL on its right to challenge the order was as follows. GMEL is a creditor since there is an acknowledged debt of £3,250 owed by NMEC to GMEL for costs.

The interest of a creditor in the rectification application derives from its status as a creditor in exactly the same way as a creditor, for example, has a right to petition for winding-up of an insolvent company. The creditor has a right to notice, and a right to appear and object.

Lightman J should not have exercised his discretion without hearing all parties interested. A creditor by definition has an interest in the assets, and Lightman J should have directed that notice be given to all creditors, because what he was in effect deciding, although his order took the form of rectification of the register, was whether this company was or was not in liquidation. The reason for the application for rectification of the register was to preserve the liquidation.

The discretion to order rectification is a wide one, but not so wide as to entitle the court to make an order for rectification which affects the position of parties who had no notice of the application for rectification and who would have had something to say about whether this company was to go into liquidation or not.

Had GMEL been notified of the application, it would have appeared and would have objected, because (inter alia) of the deficiencies in the statutory declaration.

He accepted that, even if Lightman J’s order were set aside, Lord Falconer’s name could be entered on the register, and he could then pass a member’s resolution for a voluntary winding-up. But it would involve the consequence that what has been done to date in the liquidation is a nullity.

The reason why GMEL is entitled to relief is that it was unfairly prejudiced by being limited, as a result of the liquidation, in its right to disclosure of documents. The proof of debt procedure did not give it automatic disclosure in order to enable proper adjudication of its claims, whereas without a liquidation it would be in a position of being able to institute proceedings under the CPR without fear of a stay, and which would give it disclosure.

There would be substantial documents available to the Company, which would be relevant to GMEL’s claims. GMEL was making claims not merely of inappropriate public funding of the NMEC project but also of passing off, breach of confidence and conspiracy to injure, in relation to which one would expect the company to have relevant documents. GMEL was all the more concerned that there be some documents given the tenacity with which disclosure has been resisted.

The discretionary power under section 359 has in effect been used for an improper purpose, i.e. the validation of the liquidation without resort to the views of creditors such as GMEL.

The argument on behalf of the Shareholders is that, assuming (but not accepting), that GMEL is a creditor of NMEC, and even if it is "prejudiced" by the liquidation, this is not prejudice caused by the rectification and regularising of the membership position. Were the rectification not permitted, appropriate transfers could and would be obtained and registered and NMEC then placed into liquidation. GMEL would then be in no different a position. The rectification is therefore not the real cause of what GMEL complains of, which is the liquidation.

GMEL has, and had, no legitimate or any other interest in the identity of the shareholder in NMEC and whether it was (as shown by the register prior to rectification) Mr Mandelson or Lord Falconer or the Secretary of State.

There is in any event no "prejudice" caused to GMEL by liquidation. If NMEC is insolvent, liquidation is the appropriate regime. If NMEC is not insolvent, there is no prejudice, as other creditor remedies are preserved. The requirement formally to prove for a debt does not create a different unfair procedure that would not apply prior to liquidation.

Conclusions

Section 359(1) of the Companies Act 1985 provides:

The power to rectify is discretionary. Section 35 of the Companies Act 1862 gave the court the power to rectify the register "if satisfied of the justice of the case." See Sichell’s Case (1867) 3 LR Ch. App. 119, 112. In Re Sussex Brick Company [1904] 1 Ch 598, Vaughan Williams LJ said (at 606- 607):

Stirling LJ said (at 608-609):

It is also clear from that decision that the order for rectification may be made with retrospective effect, subject to such conditions as the court thinks necessary to protect the rights of third persons: see pp 609-610.

I am satisfied that the Shareholders are right in their contention that GMEL does not have a sufficient interest in the rectification of the share register so as to give it a right to challenge the order of Lightman J. I am also satisfied that, if it did have standing, it has no legitimate ground for challenging the order. There plainly was a mistake in the share register and therefore Lightman J was justified in making the order, and it cannot be set aside unless there were some overriding ground for refusing to exercise his discretion to rectify the error.

I accept the contention by Mr Davis-White QC that it is necessary to draw a distinction between a person who may be affected by something and in a loose sense would be "interested" and the question of whether or not a person has a legitimate interest in the matter such as to require that person to be given notice, and be heard.

Thus in Sichell’s Case (1867) 3 LR Ch. App. 119, to simplify the facts, A was a shareholder in the Joint Stock Discount Bank. A transferred its shares to B, but the transfer was not registered. B borrowed money from Sichell who took a charge on the shares, and lodged the transfer (by way of charge) from B. B repaid the loan to Sichell, and then the bank went into liquidation, and the official liquidator applied for rectification of the register to show Sichell as a contributory. Sichell appealed from the order rectifying the register. His argument was that although the mortgagor might have had an interest in obtaining rectification, the official liquidator (who represented the company) had no standing (i.e no interest) in obtaining rectification. Shareholder A argued that there was gross delay in registration, and therefore, whoever ought to be on the register, it was not A. It was held that the official liquidator had no standing to apply to put Sichell on the register. He had no standing to represent the creditors because they had no legitimate interest or "equity" in Sichell being on the register:

Nor did he have a right to represent the contributories:

Nor did he have a right to represent the company, because it would not be right to rectify the register in circumstances where the rectification was required because of the culpable delay of the company in registering transfers and where there had been a change in the affairs of the company to the prejudice of the shareholder.

Sichell’s Case does not, of course, lay down any rule of law as to which categories may have an interest in an order for rectification, but it does show that there must be a legitimate interest. In Morgan v Morgan Insurance Brokers Ltd[1993] BCLC 676 the majority shareholder held 76.9 per cent of the votes and therefore controlled the company. There were 10 other shareholders he was in dispute with and to try to resolve the dispute so that he could have a quorum at a meeting he attempted to transfer one share to his daughter. He applied to rectify the register when the directors refused to register the transfer. The respondents conceded that they had no right to refuse to register and the only issue was costs, and in particular who should have been joined. Millett J held that the proper respondents were the company and the registered holder, and not other shareholders, whose interests were represented by the company, or directors.

If, however, rectification of the register would directly affect the legal rights of another person, then the court may not order rectification without hearing that other person. Thus in Sichell’s Case (1867) 3 LR Ch App 119 it is clear that the Court of Appeal considered that it would be wrong to rectify the register without giving an opportunity to A and B to be heard. In Re Greater Britain Insurance Co. Ltd, ex p Brockdorff (1921) 124 LT 194 (Russell J and CA) Brockdorff said that he had been wrongly allotted shares at a premium, since he had only agreed to sub-underwrite the shares at par, and when the company disagreed he applied for rectification. Russell J refused the application on the ground that the real issue was between Brockdorff and the underwriters, whom Brockdorff refused to join in the application: He said (at 196):

The Court of Appeal dismissed the appeal, but on the ground that Brockdorff had agreed to subscribe at a premium.

The creditors have no interest whatsoever as to whether the shareholder is Lord Falconer or Mr Mandelson or the Secretary of State. The shares are fully paid. There is no evidence (and it is most unlikely) that anyone has relied on Lord Falconer not being a member. All the relevant public documents show him as a member.

It would be absurd if, for example, in the case of a large public company, every creditor, or every shareholder, had to be notified of an application to rectify.

Nor do I accept that there is any relevant prejudice. There is nothing in the point that GMEL has been deprived of its rights to disclosure by the liquidation. Mr Oliver QC argued that GMEL would be deprived of its right to automatic discovery under the CPR if there were a liquidation. But (a) disclosure under the CPR is not now automatic, as it was once under the RSC, although it is agreed or required in the ordinary way; and (b) in another context, Mr Oliver QC argued that GMEL would have a good chance of avoiding a stay of ordinary proceedings in an application by the Liquidators under section 112 of the 1986 Act. In any event, if the summary procedure in liquidation is inappropriate the court has sufficient power to adapt the proof procedure to encompass certain elements, such as disclosure, cross-examination and statements of case, under the Insolvency Rules 1986. By r 7.10 the court may give directions as to (inter alia) statements of case and cross-examination. By r. 7.60(b) any party to insolvency proceedings may apply to the court for an order for disclosure in accordance with CPR Part 31 (disclosure and inspection of documents) and by r. 7.51(1) the CPR, the practice and procedure of the High Court apply to insolvency proceedings in the High Court, with any necessary modifications, except in so far as inconsistent with the Insolvency Rules.

Here GMEL agreed that the proof application should be dealt with in the absence of cross-examination. GMEL applied for disclosure. It was refused by Mrs Registrar Derrett on 9 May, 2003.Having attempted, by three separate applications, to adjourn the proof of debt proceedings until after the hearing of the current applications, GMEL eventually rejected the opportunity for the Court to rule as to whether or not it is a creditor of NMEC and in what sum. I do not see how it can be said that the order of Lightman J could possibly have been the cause of the alleged prejudice.

The contentions

The declaration of solvency under section 89 of the 1986 Actis a statutory declaration that the directors have made a full enquiry into the affairs of the company, and have formed the opinion that it will be able to pay its debts in full within 12 months from the winding up, and they append (as required by section 89(2)(b)) a statement of the company’s assets and liabilities ("the Statement") as at 18 December 2001, the earliest practicable date before the making of the declaration (which was in fact made on the same day).

Section 89(2) provides that the declaration has no effect unless it embodies the Statement, and by section 90 a winding up in which a declaration has been made is a members’ voluntary winding up, and a winding up in the case of which a declaration has not been made is a creditors’ voluntary winding up. Consequently, even if a company is solvent, the effect of a failure to comply with section 89 is that the winding up is a creditors’ voluntary winding up, and (inter alia) creditors’ meeting have to be called under section 98.

GMEL asserts that the Statement required to be attached to the directors’ statutory declaration of solvency is inaccurate. It makes the very serious assertion that the inaccuracy was knowingly perpetrated by the directors, and (as I have said) the skeleton argument of Mr Hyde, junior counsel for GMEL, relies on the well-known decision on the criminal law, R v. Kylsant [1932] 1 KB 442, that a written statement may be false by virtue of knowing omissions as well as by false statements. GMEL says that the consequence is that NMEC is in creditors’ voluntary liquidation (rather than members’ voluntary liquidation) and the Liquidators are not validly appointed.

Understanding the detailed criticisms of the Statement made by GMEL is not altogether an easy task, since GMEL’s case has not been a consistent or a clear one. In particular, GMEL seems to proceed on the basis that (its claim apart) NMEC is solvent and that the Statement is mainly deficient in understating its assets.

In his oral argument for GMEL, Mr Oliver QC relied on three main points. The first is that the Statement failed to take any account of any share in the proceeds of sale of the Dome itself. The share in the proceeds of sale of the Dome was valued at nil. But the evidence is that the Dome was under offer at a figure of £120 million for the preceding 12 months. It is very difficult to see how something that only a year previously had been the subject of an offer from a third party of £120 million, which would have resulted in substantial funds becoming available to the company, could be written down in the space of one year to nil at a time when it was known that there are on foot arrangements which could result in substantial funds becoming available to NMEC.

In the written argument for GMEL it was also said that the Statement is inaccurate because the amount of the debt shown as due to the Commission which will receive payment of any surplus remaining after satisfaction of all other debts, liabilities and expenses, ought to be increased to reflect the value of NMEC’s interest in the proceeds of any sale of the Millennium Dome or its site.

The second point made by Mr Oliver QC was that the Statement failed to take account of a sum of at least £25 million that was available by way of Commission grant. There is a clear acknowledgment in the directors’ report for the period ended 18 December 2001 that there is £25 million worth of grant, where it was said "there was a further £25 million undrawn grant available to cover unforeseen liabilities. The liquidators will account separately to the Millennium Commission for all the funds utilised while they are in control of the company". But there is no reference to that in the Statement.

The third criticism is that the Statement failed to take account of a provision mentioned in the auditors’ report of what was described both in GMEL’s case and also in Mr Oliver QC’s oral presentation as a provision of £15 million.

The position of the Shareholders and the Liquidators is that GMEL has no interest sufficient to ground locus standi. GMEL is not a creditor of NMEC. The acknowledged debt of £3,250 owed by NMEC to GMEL for costs has either been paid, or is subject to the defence of tender. A cheque was sent to GMEL but not cashed. GMEL now claims that the Liquidators had no power to send the cheque.

Even if GMEL were right that the Statement was in some respect inaccurate (which is not accepted), the Statement and the Declaration were nonetheless not nullities. On the contrary, they were and are reasonably and fairly described as the statement of assets and liabilities which is required to be produced by section 89 of the 1986 Act. Accordingly, NMEC is in members’ rather than creditors’ voluntary liquidation: De Courcy v Clements [1971] Ch 693.

The Shareholders and the Liquidators accept that were the court to accept the submission made by GMEL that the declaration is a nullity, then in consequence NMEC would be in creditors’ rather than members’ voluntary winding up. This follows from the terms of section 90 of the 1986 Act, which provides that the distinction depends solely on whether or not a declaration of solvency has been made. The effect is not that the liquidators are not properly appointed but that their powers are restricted: Re Centrebind Ltd [1967] 1 WLR 377; section 166 of 1986 Act.

If NMEC is in creditors’ rather than members’ voluntary liquidation, the principal effect would be to require (or at least, to permit) the Liquidators to apply to the court for directions as to the manner in which they should remedy the failure to hold a creditors’ meeting under section 98, and to provide the court with jurisdiction to sanction, retrospectively, their acts and conduct since 18 December, 2001: section 166 of the 1986 Act. It is submitted that in the circumstances of this case, the liquidation having being effectively completed, the proper course would be to dispense with a creditors’ meeting and simply to direct the Liquidators to proceed to completion as if the liquidation were in fact as had been assumed. GMEL’s position would be wholly unchanged by this outcome, having already abandoned by discontinuance its appeal against the Liquidators’ rejection of its proof of debt, and having been paid the small sum otherwise acknowledged to be due.

In any event (and the Liquidators deal with this in detail) there is nothing in the criticisms of the Statement. The Statement was accurate, and reflected NMEC’s accounts to 18 December, 2001, which were audited by Ernst & Young. As at that date, it was the opinion of NMEC’s directors that no value ought to be attributed to its interest in the proceeds of any sale of the Dome property or site. Accordingly, the Statement attributes no value to "other property".

Finally, it was the opinion of the directors that the debts, whether present, prospective or contingent, identified as at 18 December, 2001, and included in the Statement, would indeed be paid within 12 months.

No evidence has been produced which shows the Statement to be in any way inadequate as at the date of the Declaration. GMEL’s complaints are based on the view taken by the directors as to valuation. No items are omitted from the Statement, whether knowingly or otherwise.

In particular (a) the Company’s directors reasonably believed that it was proper to ascribe no value to NMEC’s residual contractual entitlement; (b) as regards the £25 million of undrawn grant, it would have been positively wrong to include as an asset any part of the remaining but unsought grant, which was only available to NMEC if it had some debt, liability or expense that required to be paid but could otherwise be met. No such liabilities were known to NMEC; (c) the £1.5 million is included as part of the total provision of £2,452,000 for liabilities and charges included in the balance sheet.

Conclusions

First, I accept the contention that deficiencies in a statement of assets and liabilities do not deprive it of the quality of a statement of assets and liabilities under section 89(2)(b), and therefore do not have the result under section 89(2) that the Declaration has no effect.

In De Courcy v Clements [1971] Ch 693, it was claimed by the plaintiff that a directors’ declaration of solvency (then made pursuant to section 283 of the Companies Act 1948) was of no effect because of their failure to refer to a claim to £45,000 in the associated statement of assets and liabilities.

The plaintiff claimed that no statement of assets qualified as a statement unless it were substantially accurate. Mr Donald Nicholls (as he then was), counsel for the former liquidator, argued that it was more reasonable to treat the phrase "statement of the company’s assets and liabilities" as being qualified by words such as "so far as known to those making the declaration." Megarry J described that approach as the less stringent construction, and at page 698 he said that the considerations relied on by Mr Nicholls "seem to me to require that the words ‘a statement of the company's assets and liabilities’ … should bear the less stringent meaning."

Mr Oliver QC argued that this meant that Megarry J was holding that if it could be said that the directors knowingly omitted an asset or a liability, then the statement would not qualify as a statement. But I am satisfied that was not what Megarry J meant, for he went on ([1971] Ch 693, 698-699):

In my judgment the ratio of that case is that there must be something which can be reasonably and fairly described as "a statement of the company's assets and liabilities": but if there is, then even if it subsequently appears that there are errors and omissions, these will not prevent the statement from being a statement. Although I am not bound by the decision, it seems to me to make perfect sense, and I will follow it. I am wholly satisfied that, even if GMEL’s contentions on the alleged deficiencies were right, the Statement can obviously be reasonably and fairly described as a statement of the company’s assets and liabilities.

If I were wrong on that, I go on to consider the specific criticisms. There was no order for expert evidence, and, as I have said, I refused permission to GMEL to adduce last minute expert evidence. GMEL has not sought cross-examination of the Liquidators, and there is therefore a conflict of evidence.

Mr Oliver QC submitted that Mr Moore of GMEL on his own had done enough to make it manifest that the Statement did not include assets and liabilities that should have been included, and that the declaration is in effect a non-declaration and is a nullity. In my judgment the burden is on GMEL to make good its case on the accounts and the Statement. The accusation is that the directors made a false statutory declaration and knowingly put forward a false Statement. That is a very serious allegation, on which I could not possibly make an adverse finding against the directors without proper particularisation and in the absence of cross-examination.

On 15 July 2003 Mr Leigh Acton, who appears to be closely associated with Mr Moore, and who has been conducting this litigation on behalf of GMEL because of Mr Moore’s illness, laid informations at Bow Street Magistrates Court against the directors of NMEC alleging offences under section 210 of the Insolvency Act. The informations were accompanied by the evidence of Mr Mond which I refused to admit in these proceedings (although I do not know if his consent was obtained), and some of the evidence filed by Mr Treharne. Yesterday I refused an application by GMEL that I should postpone the delivery of judgment in this matter until the conclusion of the criminal proceedings which Mr Acton hopes will be launched.

I am satisfied on the material before me that GMEL has come nowhere near discharging the burden that its criticisms are justified.

NMEC built the Dome, with funds provided from the National Lottery, on the Greenwich site. But NMEC does not own either the Dome or the site on which it is built, which belongs to English Partnerships, the Government’s urban regeneration agency for England. NMEC’s only remaining interest in the property comprises a contractual entitlement to share to some extent, and in some events, in the proceeds of its sale, should a purchaser ever be found. During 2000 and 2001 there were efforts to sell the site of the Dome, first to Dome Europe and then to Legacy PLC. Those negotiations came to nothing.

Mr Moore’s evidence is that the Dome site has not been sold, but can reasonably be expected to realise about £100 million, and there is nothing in the Statement that represents that value.

The Liquidators’ evidence is that additional funding was made available to NMEC in the summer of 2000 at a time when there was an expectation that NMEC would receive approximately £53 million as its share of the expected sale receipts for the Dome. That sale did not go ahead. There was no reference to the value of the Dome in the Statement because as at 18 December 2000 there was no agreement in the offing nor was there any viable proposal available in the near-term. Accordingly, although NMEC retains contractual rights to share in the proceeds of sale as and when it occurs, the directors considered that as at 18 December 2001 they could not ascribe any value to those rights.

Consequently, the evidence is that as at 18 December, 2001, there was no immediate or indeed any prospect of a sale of the property, which remains unsold even now, 18 months later. The evidence is that NMEC’s directors therefore believed that it was proper to ascribe no value to NMEC’s residual contractual entitlement. The Statement includes reference to "other property", but no value is attributed thereto.

There is no answer by Mr Moore to this evidence. I accept, therefore, the contention that the fact that it was previously believed that the Dome and its site would be sold for a substantial sum, as for example is apparent from NMEC’s Accounts to 31 December, 2000 (which budgeted £30 million net proceeds from the sale of the Dome), is irrelevant. At the material time, 18 December, 2001, the directors’ opinion of the value of NMEC’s right is reflected in NMEC’s audited accounts (audited by Ernst & Young LLP), in the Statement and in the Declaration. GMEL has not demonstrated that view to have been improperly reached, and I see no prospect of it being able to do so.

By virtue of the terms of a grant memorandum made in September, 2000, and replaced on liquidation by a deed of grant made between NMEC and the Commission, NMEC was entitled, subject to satisfaction of certain conditions, to request payment by the Commission of sums for use in the conduct of its business, up to a total of £630 million, the anticipated gap between total lifetime project costs of £802 million and other anticipated income of £172 million.

Mr Moore’s evidence relies on the fact that the executive chairman’s statement in the accounts states that £22 million of the fourth allocation of grant funding had been utilised. He says, therefore, that £25 million of grant remains available. He says that entitlement was transferred to the Liquidators to be paid into trust funds held in their name. There is no entry reflecting the entitlement in the Statement.

Mr Treharne’s evidence is that Mr Moore has got his facts completely wrong. The £25 million has not been transferred into trusts, which were concerned with quite separate monies. The undrawn grant facility of £25 million was (and is) available to be drawn down, in whole or in part, on successful application to the Commission by the Liquidators, but an application can only be acceded to if there are liabilities or costs that need to be settled, and those liabilities cannot be met out of NMEC’s resources already available. If NMEC has no continuing business and no further debts or liabilities, then it can have no further need or indeed entitlement to call on the Commission for payment of any additional sum.

In respect of any sums so paid, the Commission is a limited recourse, subordinated creditor, i.e. it is entitled to payment of any surplus remaining to NMEC after satisfaction of its other debts, liabilities, costs and expenses, in priority to NMEC’s member, who will receive nothing unless the surplus exceeds the amount of the grant drawn down and not otherwise repaid, being some £605 million, which is unlikely in the extreme. Assuming therefore that it is able to satisfy each of its other liabilities, NMEC is ex hypothesi solvent: the amount of the debt to the Commission is determined by the amount, if anything, of the surplus.

As at 18 December, 2001, NMEC had realised many of its assets and satisfied most its debts. However, in order to ensure that it had resources sufficient to meet any remaining liabilities, a request was made to the Commission for payment of a further sum pursuant to the agreed facility. The Commission agreed this request in the sum of £3,037,000. That agreement is reflected in the Statement as "Debtors – other" and in the audited accounts to 18 December, 2001, in the Balance Sheet, as explained in the Note 9 to the Accounts. Payment of the sum was received shortly after the Liquidators were appointed. In part, it was paid into trusts to fund specific activities, relating principally to litigation.

The evidence of the Liquidators is that not only would there have been no justification, but it would have been positively wrong to include as an asset any part of the remaining but unsought grant, which is only available to NMEC if it has some debt, liability or expense that requires to be paid but cannot otherwise be met. No such liabilities were known to NMEC. Accordingly, the claim made by GMEL that the Statement ought to have included reference to the £25 million of undrawn grant, is unsustainable.

Secondly, the Commission is properly included as a "subordinated creditor" in the sum of £571,000, which is simply the mathematically calculated balance arrived at after payment of all other estimated liabilities, and was thus the sum properly estimated as contingently due to the Commission.

There is no answer by GMEL to these contentions except that they are wrong. I am satisfied that GMEL has not made good its criticism.

This contention is plainly based on a misreading of a poor photocopy. The Liquidators drew Mr Moore’s attention to the fact that the provision was in fact a provision of £1.5 million. The auditors’ report stated:

The balance sheet shows a provision for liabilities and charges of £2,452,000, and note 11 shows that the £1.5 million is included in this figure. On this material, GMEL has not established a case for inaccuracy.

For completeness I will mention a further criticism by Mr Moore which was not the subject of oral argument. Mr Moore says that the Statement is inaccurate in having failed to include the sum of £833,000 paid to the Commission shortly after the commencement of liquidation. The Liquidators’ answer is that on settlement of a dispute by NMEC shortly after the commencement of liquidation, the provision made for the liability was repaid to the Commission from one of the trusts in which sums were held.

Consequently the applications by GMEL fail, and I will make the declarations sought by the Liquidators.

These proceedings have taken on the character of an obsessive campaign and they have, in one form or another, come before many judges of this division as well as before the Administrative Court, and Mr Acton has now attempted to institute criminal proceedings. I will hear argument as to how best any future applications in this Division should be dealt with, and in particular whether the Vice-Chancellor should be asked to designate a single judge to deal with any future applications, so as to avoid the matter coming before judges who are not fully familiar with the background.