The issue raised by these proceedings is whether the First Defendant’s son Wayne ceased to be a director of the Second Defendant (“Tulsesense”) on 18 December 2008. It is common ground between the parties that Mr Wayne Rolfe had been the sole director of Tulsesense before 18 December 2008. The Claimants contend that Mr Wayne Rolfe’s appointment as a director came to an end when an annual general meeting of Tulsesense was held on that date. In contrast, the First Defendant’s case is that Mr Wayne Rolfe remains a director of the company.

Tulsesense was set up by two brothers, William Rolfe and the First Defendant, to whom, for convenience, I shall refer as “William” and “Bernard”. For the same reason, I shall similarly refer to other members of the Rolfe family by their Christian names.

William was born in about 1914 and died on 29 December 1998. His wife (“Violet”) survived him by some seven years, but died on 23 July 2006. William and Violet had three children: Rita Anderson (“Rita”), and the two Claimants (respectively “David” and “Jacqueline”). Rita herself died on 11 February 2008, but she is survived by four children: Debra Meynell (“Debra”), Stephen Anderson (“Stephen”), Kevin Anderson and Kim McGrath.

Bernard, who is now approaching 90 years of age, also has children. Two have featured in the proceedings before me: Mr Wayne Rolfe (“Wayne”) and Bernard’s daughter Michelle Wood (“Michelle”).

During William’s lifetime, he and his brother each held one of the two issued shares in Tulsesense, and they were the company’s only directors. In practice, the management of the company was largely undertaken by William’s side of the family from 81 Broomfield Avenue, Palmers Green, London N13, where William and Violet lived and Jacqueline still lives. Violet was the company secretary.

Tulsesense’s business is that of investment in freehold reversions of property. The company has, I am told, a portfolio of some 3,000 properties.

Shortly after William’s death in 1998, documents were sent to Companies House recording the appointment of Violet and Rita as additional directors of Tulsesense on 4 January 1999. The forms were signed by Violet and Rita respectively and also by Bernard. There is dispute between the parties as to whether any meeting was held in connection with Violet’s and Rita’s appointment to Tulsesense’s board.

William left a will in which he named Violet and Bernard as his executors and trustees. The will further provided for William’s trustees to hold the net proceeds of his estate on trust to pay the income to Violet during her life and then on trust for Rita, Jacqueline and David in equal shares absolutely. Probate of the will was granted to Violet and Bernard on 12 September 2001. On 8 September 2003 a deed of appointment and retirement was executed in connection with the will. The deed was expressed to be supplemental to the will, which was referred to as “the Settlement”, and provided for Bernard to be replaced as trustee by Rita and Mr David Bristow (“Mr Bristow”), who is a solicitor and a partner in W H Matthews & Co.

In March 2005 Companies House was sent documents (forms 288a and 288b) recording the appointment of Jacqueline in Violet’s place as the secretary of Tulsesense from 1 March.

It is clear that Tulsesense’s affairs were conducted very informally. No more than a few formal board meetings were held, and I am not aware of any signed minutes of any general meeting before 2007.

Following the death of Violet in 2006, there were discussions about the possibility of Bernard buying the share in Tulsesense which his brother had held. In the event, these did not come to fruition. On 22 June 2007 Rita, Jacqueline and David confirmed in a letter to Bernard that they did not wish to sell their share of Tulsesense.

By now, disputes had arisen between the two branches of the family as to the management of Tulsesense, notably in relation to sums received by entities associated with William’s side of the family in respect of management charges and by way of commission on insurance effected on the company’s properties. The issues remain unresolved, but the detail of them is unimportant for present purposes.

On 21 May 2007 Bernard informed Rita, Jacqueline and David in a letter that, in future, Wayne would manage his business affairs on a daily basis. Bernard was by now 87 years of age. Both this and other letters were drafted for Bernard by Wayne, but it was explained to me that the letters would be discussed with, and approved by, Bernard.

In a letter dated 30 June 2007, Rita and Jacqueline told Bernard that an extraordinary general meeting of Tulsesense would be held on 17, 18 or 19 July and asked that he let Mr David Jennings (a chartered accountant and the principal of Newton & Co, who had acted as the accountant for Tulsesense since its incorporation) know which date would be convenient and any particular items he would like to be included on the agenda. In his reply of 9 July, Bernard stated:

As had been contemplated in the Gisby Harrison letter, on 16 July 2007 Bernard executed an enduring power of attorney. The power of attorney provided that Wayne was to have authority to do the following on Bernard’s behalf:

A meeting took place, as planned, on 17 July 2007 at 81 Broomfield Avenue. Those present were Rita, Jacqueline and David; Wayne and his sister Michelle; Mr Bristow; and Mr Jennings. What happened at this meeting bulked large both in evidence and submissions. I shall consider it in more detail later in this judgment.

Two days after this meeting, on 19 July 2007, Bernard wrote a letter to Mr Jennings in the following terms:

On 20 July 2007 Mr Jennings circulated to Bernard, to Rita, Jacqueline and David, and to Mr Bristow the record he had prepared of the 17 July meeting. On the same day, Mr Jennings responded to Bernard’s letter of 19 July as follows:

To this, Bernard replied in the following terms on 22 July 2007:

On 26 July 2007 Mr Jennings wrote to both Wayne and his father. Mr Jennings noted in his letter to Wayne:

Replying on 5 August 2007, Wayne enclosed a copy of the executed power of attorney and said:

In a letter to Wayne of 6 August 2007, Mr Jennings said:

On 7 August 2007 Wayne wrote to Mr Jennings as follows:

On 8 August 2007 Mr Jennings sent Wayne, for his signature, “the Form 288A relating to your appointment as a Director of the company following Bernard’s resignation”. Wayne returned the form, signed, on the following day. On 10 August, Mr Jennings sent a letter to Rita, Jacqueline and David at 81 Broomfield Avenue in which he said, among other things, the following:

On 24 August 2007 Mr Jennings sent the completed forms to Companies House. Rita had signed them on 20 August 2007.

As mentioned above, Rita died on 11 February 2008, leaving Wayne as the only director of Tulsesense. On 18 February, Jacqueline wrote to Wayne asking that he approve the appointment of David as a director of the company in Rita’s stead. That, however, was not agreed, and there were continuing disputes between Wayne and his cousins. By 4 April, Debra, one of Rita’s children, was questioning in correspondence how Wayne had himself been correctly appointed as a director of Tulsesense.

On 8 May 2008 Mr Bristow, as the surviving trustee of the trusts established by William’s will, appointed Jacqueline and David as trustees in place of himself and Rita. Shortly afterwards Bernard transferred to Jacqueline and David the share in Tulsesense which he had held as an executor of his brother’s will.

An annual general meeting of Tulsesense was held on 18 December 2008. In advance of the meeting commencing, Debra stated that the attendance of Jacqueline and David at the meeting was not to be taken as acceptance of the validity of Wayne’s appointment as a director. During the meeting, a resolution to appoint David as a director was proposed. Jacqueline voted in favour of the resolution, but Bernard voted against it. Minutes of the meeting record:

The proceedings now before me had been issued about a week earlier, on 10 December 2008.

I heard evidence from Jacqueline, David, Debra, Stephen, Mr Jennings, Mr Bristow, Bernard, Wayne and Michelle.

I should mention specifically the evidence given by Bernard. His recollection of events was clearly limited, and in certain respects he appeared confused. During his cross-examination, there were the following exchanges:

Mr Edward Knight, who appears for Jacqueline and David, argues that Wayne was appointed as a director of Tulsesense by the board of Tulsesense, of which Rita was at the time the only member, in accordance with article 95 of the 1948 version of Table A. That article provides for a director so appointed to “hold office only until the next following annual general meeting” and then to be eligible for re-election. Since Wayne was not re-elected as a director at the annual general meeting of Tulsesense held on 18 December 2008, he is no longer a director of the company, with the result, Mr Knight says, that the company now has no directors.

In contrast, Mr Ben Griffiths, who appears for Bernard, submits as follows:

Wayne was or is to be treated as having been appointed as a director by Tulsesense’s shareholders, acting informally, on a date between about 17 July and 24 August 2007 pursuant to article 94 of Table A. Since article 94 provides for no limit on the period for which a director will hold office, Wayne was appointed indefinitely rather than until the next general meeting. He accordingly remains the sole director of the company. Mr Griffiths founds his arguments on the Duomatic principle.

Alternatively, article 95 has been modified or disapplied by Tulsesense’s shareholders acting informally.

Further or alternatively, Bernard tendered his resignation as a director conditionally on Wayne being appointed as such by Tulsesense’s shareholders (rather than its board) and, if that did not happen, Bernard remains a director.

It will be apparent from the summary I have given of the parties’ cases that the articles of association of Tulsesense incorporate, subject to certain exclusions and modifications, the 1948 version of Table A. The articles so incorporated include the following:

Article 7

Article 29

Article 63

Article 94

Article 95

As I have already mentioned, Mr Griffiths founds his argument that Wayne was or is to be treated as having been appointed as a director by Tulsesense’s shareholders, under article 94 of Table A, on the Duomatic principle.

That principle takes its name from the decision of Buckley J in Re Duomatic Ltd [1969] 2 Ch 365. In that case, Buckley J said (at 373):

Mr Griffiths submitted that, in the context of the Duomatic principle, the assent of the legal owner of a share suffices; if, he said, a person who holds a share as a trustee or executor assents, it is immaterial whether the beneficiaries also do so. Moreover, where a person who holds some shares for himself and other shares as a trustee or executor assents to a course of action, he is, Mr Griffiths suggested, to be taken as giving approval in respect of both his own shares and those of which he is a trustee or executor. Mr Griffiths further argued that assent need not involve any outward manifestation; it is, he contended, enough that a shareholder decides in his own mind on a course of action. Mr Griffiths contended, too, that where a share is held on trust for a number of persons jointly, or in equal shares, the assent of any one of those persons will do for Duomatic purposes.

These propositions, if correct, could have surprising consequences. If, say, it were proposed that a person should become a director, the appointment would presumably occur as soon as the last shareholder concluded in his own mind that this should happen, regardless of whether the shareholders had done anything either to communicate or to record their decisions. The appointment would, moreover, remain legally effective even if a shareholder changed his mind in advance of communicating or recording his initial decision. Further, were shares in a company to be held on trust for one person (“X”) as to a 99% share and another (“Y”) as to a 1% share, the assent of Y alone would, on Mr Griffiths’ case, satisfy Duomatic requirements, even if both X and the trustee of the shares disagreed with what was proposed.

There are several respects in which I am either unable to accept the propositions which Mr Griffiths puts forward or would wish to qualify them.

In the first place, in my judgment if an individual who holds some shares for himself and other shares as a trustee or executor has expressed assent, he is not to be taken to have given that assent in respect of the shares held as a trustee or executor if he did not intend or purport to be making a decision in relation to those shares, at any rate if it would have been apparent to an observer that the assent was not intended to extend to the shares held as a trustee or executor. To take an example with similarities to the case before me, suppose that an individual who held one of a company’s 100 issued shares beneficially and the remaining 99 as a bare trustee concluded that a director should be appointed. The requirements of the Duomatic principle should not, without more, be taken to be satisfied were it evident that the shareholder had considered that it was for the beneficial owner of the 99 shares, and not for him, to make decisions as regards those shares.

Secondly, I do not accept that a shareholder’s mere internal decision can of itself constitute assent for Duomatic purposes. I was not referred to any authority in which it had been decided that a mere internal decision would suffice. Further, for a mere internal decision, unaccompanied by outward manifestation or acquiescence, to be enough would, as it seems to me, give rise to unacceptable uncertainty and, potentially, provide opportunities for abuse. A company may change hands or enter into an insolvency procedure; in either event, it is desirable that past decisions should be objectively verifiable. In my judgment, there must be material from which an observer could discern or (as in the case of acquiescence) infer assent. The law applies an objective test in other contexts: for example, when determining whether a contract has been formed. An objective approach must, I think, also have a role with the Duomatic principle.

Turning, thirdly, to whether the assent of a single beneficial owner would be sufficient, in recent years the question whether the approval of a share’s beneficial owners can satisfy Duomatic requirements has been touched on in several authorities, notably Domoney v Godinho [2004] 2 BCLC 15 and Shahar v Tsitsekkos [2004] EWHC 2659 (Ch). In each case, the point was considered unsuitable for summary determination. In Shahar, Mann J said the following (in paragraph 67):

Whether or not, however, the assent of all the beneficial owners of a share will suffice, I do not think that the assent of just one of a number of such owners normally will. First, while the beneficial owners of a share, acting together, might be able to require the share to be transferred to them (compare the rule in Saunders v Vautier (1841) Cr & Ph 240), no individual beneficial owner could do so. Further, even supposing that a share were transferred to its beneficial owners, with the result that they became joint holders, it would not necessarily follow that any of them could vote in respect of the share. As noted above, article 63 of the 1948 Table A provided for the vote of the “senior who tenders a vote” to be accepted. In the circumstances, it seems to me that, unless perhaps the legal owner of a share had entrusted decisions in respect of a share to just one of its beneficial owners, the assent of only one such owner cannot be enough for Duomatic purposes.

It is common ground between the parties that by 2007 Bernard was the only person who fell to be recognised by Tulsesense as a shareholder. Bernard had throughout held one share for himself. As regards the other share, this was now held by Bernard as William’s sole surviving executor.

However, it is apparent from the evidence that neither Bernard himself, nor Wayne as his agent, regarded Bernard as entitled to make decisions in respect of William’s share, to which, by 2007, Rita, Jacqueline and David were beneficially entitled. Wayne explained in his witness statement that he and his father had taken advice from Gisby Harrison on the basis of which they understood that the permission of Rita, Jacqueline and David would be needed for Wayne to be appointed as a director. In oral evidence, Wayne said that he had been advised that Rita, Jacqueline and David were the shareholders so far as his uncle’s share was concerned and that that was therefore his understanding when he attended the 17 July meeting on behalf of his father. That Rita, Jacqueline and David were seen as entitled to their father’s share and to make the decisions in respect of it also emerges from the contemporary correspondence: for example, Bernard referred to Rita, Jacqueline and David as “the other 50% shareholders” in his letter of 19 July and, in his 22 July letter, to the “shareholders and directors” having agreed to his requests at the 17 July meeting; Rita, Jacqueline and David were similarly referred to as the “other 50% shareholders” in Wayne’s letter of 5 August 2007. In argument, Mr Griffiths fairly accepted that there was evidence suggesting that Wayne and his father took it that it was for Rita, Jacqueline and David to make decisions in relation to the share which Bernard held as an executor. Mr Griffiths further accepted, correctly, that there was no evidence that Bernard had considered whether it was appropriate for him to assent as an executor to Wayne’s appointment as a director; as Wayne and Bernard saw matters, the question did not arise. In the circumstances, I do not think that the assent of Bernard, or of Wayne on his behalf, can represent assent in respect of the share formerly held by William. Neither Wayne nor Bernard intended or purported to make any decision in respect of that share, and it was apparent that they were not so intending.

It follows that, for Duomatic purposes, any assent in respect of William’s share can have been given in 2007 only by (a) Rita, Jacqueline and David (as the ultimate beneficial owners) or, possibly, (b) Rita and Mr Bristow (as the trustees of the trust established by William’s will). In either case, the assent of Rita alone would not suffice. As I have explained above, I do not think that the assent of one of a number of beneficial owners can be enough unless, perhaps, the legal owner has entrusted decision-making to just one of the beneficial owners, and there is no suggestion of that in the present case.

Mr Jennings’ formal note of the meeting of 17 July 2007 had as its last numbered item:

Several other notes of the meeting also exist. Mr Jennings himself made some manuscript notes during the meeting. These include a reference to “Alternate Directorship”, but make no mention of Bernard resigning and being replaced by Wayne. An attendance note prepared by Mr Bristow on his return to his office states:

I heard evidence about the meeting of 17 July 2007 from each of those who attended it other than Rita, who has of course died. The thrust of the evidence given by Jacqueline, David, Mr Jennings and Mr Bristow was to the effect that, while Wayne referred at the end of the meeting to the possibility of his becoming a director in place of his father (as opposed to merely acting as an alternate director), no decision was made in this respect. Mr Jennings, for example, said as follows in his witness statement:

In contrast, Wayne’s and Michelle’s evidence was to the effect that it was agreed at the meeting that Wayne should replace his father as a director. Wayne stated as follows in his witness statement:

For my own part I have no doubt that, while Wayne may not now recall this, there was discussion at the meeting about his acting as an alternate director. That is what the note of meeting which Mr Jennings circulated records, and no one disputed the accuracy of the note in this respect at the time. Further, Mr Jennings’ manuscript notes refer to “Alternate Directorship”, and Mr Bristow’s attendance note records that Wayne asked to be appointed as an “alternate director”. In his oral evidence, Mr Bristow remembered specifically feeling pleased that Mr Jennings had been able to confirm that alternate directorship was permissible under Tulsesense’s articles of association.

The likelihood is, I think, that Wayne’s own reference, in his notes, to “Alternative Director – no problem” related to his acting as an alternate director. Wayne accepted when giving his evidence that he was not experienced in such matters, and, that being so, it is unsurprising that he should have put down “alternative” when he really meant “alternate”. Moreover, Wayne would probably have wanted to record in his notes the fact that no objection had been raised to his becoming an alternate director, and the only words which could relate to this are “Alternative director – no problem”.

There was plainly mention at the meeting of the possibility of Bernard resigning as a director and being replaced by Wayne. That is evident from, for example, the note which Mr Jennings circulated. It is indicative, however, of the fact that the topic featured only briefly that there is no mention of it in Mr Jennings’ manuscript notes, in Mr Bristow’s attendance note or indeed, if I am right in the conclusions I drew in the previous paragraph, in Wayne’s notes. Further, I found the evidence which Mr Bristow, Mr Jennings, Jacqueline and David gave about this meeting generally convincing. I accept that, as Mr Bristow said in cross-examination, Wayne expressed “a general wish that in the future, if and when required, Wayne would step into his father’s shoes”, but that this was “something that was going to happen in the future” and was “not anything specific” but a “general proposal”. Doubtless Rita, Jacqueline and David did not dissent from the suggestion, but I do not think that they understood (or should reasonably have understood) that any actual decision was called for there and then or that they were making one.

That Wayne’s and Michelle’s recollections of the meeting are not wholly reliable is suggested by evidence they gave to the effect that Wayne handed over a copy of the power of attorney at the meeting. Both were clear on this point in their evidence. However, Mr Bristow, Mr Jennings, Jacqueline and David all gave evidence to the effect that the power of attorney was not produced at the meeting, and they were not challenged on the point in cross-examination. Their evidence derives corroboration, moreover, from the notes of the meeting (none of which contains any reference to the production of the power of attorney) and the ensuing correspondence. Bernard having said in his 19 July letter that Wayne had been given enduring power of attorney, Mr Jennings asked for sight of this “as it appears that you have now executed a power of attorney”. When Wayne then sent Mr Jennings a copy of the power of attorney, he did not suggest that Mr Jennings had had any previous access to it. Once Mr Jennings had received Wayne’s letter, the enclosed copy of the power of attorney caused Mr Jennings to question whether he had prepared appropriate documents, implying again that he had not seen the power of attorney earlier.

As mentioned above, there is an issue between the parties as to whether a copy of Bernard’s 19 July letter (where he spoke of “the agreement between both the directors and shareholders in [Tulsesense], for me to resign and for my son Mr Wayne Rolfe to be appointed as a director of the company, in my place”) reached 81 Broomfield Avenue. On balance, I think it likely that it did not, either because Wayne forgot to send it or because it was lost in the post. If, however, I had concluded that the letter had arrived at 81 Broomfield Avenue, my conclusions in respect of the 17 July meeting would have remained the same. Having regard to the other evidence about the meeting, I would still have taken the view that Rita, Jacqueline and David did not understand a decision to have been made that Wayne should replace his father as a director.

Although I prefer the accounts of the 17 July meeting given by Mr Bristow, Mr Jennings, Jacqueline and David, it does not follow that Wayne and Michelle were deliberately untruthful in their evidence. The correspondence which followed the meeting tends to suggest confusion: that Wayne believed that others present at the meeting had agreed on a change of director even though, in my judgment, that was neither understood by the other participants nor objectively agreed. It is also the case that witnesses trying to recall events can arrive at erroneous conclusions without any intention to mislead.

Nonetheless, in my judgment none of Rita, Jacqueline, David and Mr Bristow can be taken to have assented for Duomatic purposes at the meeting, either outright or on a conditional basis, to Wayne’s appointment as a director.

It is plain that, in the period after the 17 July meeting, Rita did agree to Wayne being appointed as a director on his father’s resignation. So much is evident from her signing and returning to Mr Jennings, for onward transmission to Companies House, the form 288a in respect of Wayne’s appointment.

As soon, however, as Bernard resigned as a director, Rita became the only member of Tulsesense’s board and thus able to exercise alone the power to fill a casual vacancy which article 95 of Table A conferred. There is, in my judgment, no good reason to suppose that Wayne was appointed as a director on any other basis.

Arguing otherwise, Mr Griffiths referred me to Re Express Engineering Works Ltd [1920] 1 Ch 466. In that case, a company’s five directors, who were also its shareholders, had agreed that certain debentures should be issued. It was held that, although the relevant meeting was described in the minutes as a board meeting, the five were to be taken to have acted as shareholders. Warrington LJ explained the position as follows (at 470-471):

This decision could have been in point if Rita had sought to achieve a result which was outside her powers as a director. However, I can see no evidence that Rita was intending or purporting to do any more than appoint Wayne as a director, and that she could do as Tulsesense’s sole director pursuant to article 95. There is no reason to suppose that Rita was alive at the time to the different legal consequences of appointment under article 95 as opposed to article 94. Nor, as it seems to me, is there any reason to suppose that, had she been aware of the distinction, she would have thought it important or that it necessitated appointment pursuant to article 94 rather than article 95.

Further, I am not satisfied on the evidence as to the events which followed the 17 July meeting that Wayne’s appointment as a director could have been justified on a Duomatic basis had he not been appointed by Rita under article 95. There is ample evidence that Bernard assented to the appointment in respect of his own share. There is none at all, however, of Mr Bristow assenting: he simply was not involved. Nor, in my judgment, does the evidence show that Jacqueline and David assented. There is no documentary record of either Jacqueline or David playing a part in the appointment of Wayne as a director in August 2007. Jacqueline said that, although she saw Mr Jennings’ letter of 10 August and may have spoken to Rita about it, she did not understand the part of it which dealt with Wayne’s appointment as a director to be anything to do with her as a shareholder; so far as she was concerned, Mr Jennings’ reference to there being no grounds to resist Wayne’s appointment as a director represented advice to Rita, who it was would have to sign the form 288a. As for David, it seems that he did not even see the 10 August letter until after Rita had signed and returned to Mr Jennings the form 288a in respect of Wayne’s appointment as a director. David explained in evidence that he had not seen the letter until his next visit to 81 Broomfield Road, by which time the form 288a had already been signed and sent off, and Jacqueline confirmed in cross-examination that David had not read the letter until he visited 81 Broomfield Road on about 25 or 26 August 2007.

Mr Griffiths argued in the alternative that Tulsesense’s shareholders were to be taken to have tacitly modified the company’s articles so that the appointment of a director by the board was not to be merely “until the next following annual general meeting”, as article 95 of Table A stipulates.

In support of his argument, Mr Griffiths referred me to Cane v Jones [1980] 1 WLR 1451 and Ho Tung v Man On Insurance Company Ltd [1902] AC 232. Mr Griffiths relied particularly on the Ho Tung case, in which (to quote from the headnote):

Mr Griffiths submitted that an analogy could be drawn with the present case. He pointed out that Violet and Rita were said to have been appointed as directors of Tulsesense by the company’s board, but that it was not clear that any further general meetings had been held and that, in any case, Violet and Rita had never been reappointed by the company in general meeting. They had nevertheless continued to act as directors until their deaths, respectively seven and nine years later. Mr Griffiths concluded that the parties had operated for more than ten years on the basis that people appointed by the board did not require reappointment by the members and that it should therefore be inferred that the articles had been amended in this respect.

I am unable to accept this argument. The evidence indicates that too little regard was paid to the terms of Tulsesense’s articles, not that they were varied. In Ho Tung the parties assumed that the company’s articles took a particular form; there is no evidence that anyone assumed Tulsesense’s articles to be in terms different from their actual terms. There is, more specifically, no evidence in the present case that anyone intended to dispense with the provision in article 95 of Table A to the effect that an appointment under that article should continue, in the first instance, only until the next annual general meeting. In short, this is a case where the articles were not always followed, not one where they were modified or disapplied.

Mr Griffiths argued that Bernard’s resignation as a director of Tulsesense was conditional on Wayne being appointed in his place, and that that connoted Wayne’s appointment on a permanent basis. Mr Griffiths summarised the point as follows in his skeleton argument:

For my part, I can see that Bernard might well have had cause for complaint if, after he had resigned as a director, Wayne had not been appointed one; there might have been scope for arguing that Bernard’s resignation was conditional on Wayne being appointed “in his stead” as a director. However, I do not consider that Bernard’s resignation was conditional on Wayne being appointed as a director by (or as if by) the shareholders. There was concern that Wayne should be appointed a director, not as to how that was effected. At the time, no one attached importance to whether the appointment was carried out pursuant to article 95 of Table A or article 94. Bernard and Wayne were no more alive to the differing consequences of such appointments than were Rita, Jacqueline and David. Moreover, no one, so far as I am aware, was anticipating that there would be any difficulty about any future re-election of either Wayne or Rita.

I can summarise my conclusions as follows. Bernard ceased to be a director of Tulsesense when he resigned in August 2007. Wayne was appointed in his place by Rita, as the sole director of Tulsesense, pursuant to article 95 of Table A. He accordingly held office until the next general meeting of the company. Since he was not re-elected at that general meeting, he ceased to be a director of the company, and the company now has no directors.

Mr Griffiths said that the Claimants’ case was based on a complete technicality. However, Wayne became the sole director of Tulsesense only as a result of Rita’s sudden illness and death, and he and his father have themselves relied on technical rules to prevent David becoming a director. It is not for me to decide whether it was desirable for Wayne to continue as a director of Tulsesense; my role is to decide whether, as a matter of law, he did so.

I shall, accordingly, grant a declaration that Wayne ceased to be a director of Tulsesense on 18 December 2008.