Angel Group Ltd v British Gas Trading Ltd

This application requires me to address the problems that arise when a winding-up petition is presented in relation to the balance due on a running account.

Angel Group Limited (“Angel”) is a customer of British Gas Trading Limited (“BG”) purchasing electricity and gas for the portfolio of properties which it either owns or leases. Angel has two business models.

First, it provides (under a government contract) accommodation to asylum seekers, housing them in some 2000 properties. For these properties Angel is responsible for the gas and the electricity consumed, and a change in the occupant of the dwelling is therefore irrelevant. But there are two potential areas of difficulty: (a) if the property is void then any charge based on an estimated reading may assume consumption which is not actually taking place; (b) if Angel hands back a leased property for which it no longer has any business need or if it takes one of its own properties out of the scope of the government contract then some other person may become liable to pay for gas and electricity consumed at the premises.

The second business model is a more orthodox private tenant letting operation. Here a change in occupation may result in successive tenants becoming liable for energy consumed at the premises, with Angel only being liable in respect of any void periods. The potential areas for dispute are two: (a) there may be a question whether Angel is liable at all; (b) if Angel is liable because the property is void then estimated bills may again assume greater consumption than that which actually occurs.

Angel ran two separate accounts with BG. The first was the Corporate Account which dated back to 2001 and originally covered the supply of electricity and gas to some private tenant and some asylum-seeker properties: from December 2008 it related only to gas supplies. The terms of business governing this account are to be found in BG’s General Conditions version 4. Under Clause 3.2 of those Conditions once the initial Supply Period expires then the supply continues on the same terms and conditions save that the supply price becomes “those charges provided for in the schedule of standby charges… determined from time to time by [BG]”; but each party is entitled to terminate the agreement on giving not less than 28 days notice in writing to the other. BG’s contractual right to terminate commercial supply is somewhat illusory. Although the customer is Angel, the actual supply is to domestic premises; and BG cannot simply cut off the energy supply to domestic premises. So Angel enjoys continued supply in circumstances in which other commercial operators would have their supply terminated.

Clause 9.5 of the General Conditions v.4 says that if the information required for charging purposes is not available at any time then BG can make an estimate, and the customer must pay in accordance with the estimate. However clause 9.6 provides that if Angel reasonably believes that it has a dispute over the amount of an invoice then it must notify BG of the dispute within 5 days of receipt of the invoice and must pay “all undisputed amounts in full or 75% of the full amount of the invoice (whichever is the greater) save where [BG] in its sole discretion… agrees to an interim payment of some lesser amount”. Clause 20 of the General Conditions contains an “entire agreement” clause and also provides that the agreement can only be varied or amended by the written agreement of both parties.

The second account is the SME Account: in essence this relates to the properties which are occupied by asylum seekers in Yorkshire, Humberside, the North-east of England, and Scotland and which are not covered by the Corporate Account. The supply contract results from two Acceptance Forms which were signed on behalf of Angel on the 16 December 2008. There is a dispute about the terms of the contract. But at this point it is sufficient to note that the Acceptance Form requests the supply of energy for a fixed term and at a fixed price on the General Conditions version 5.

Clause 2.7 of version 5 stipulated that at the end of the initial period of the contract BG would renew it for the period of one year, and that the renewal contract would have the same terms and charges unless BG informed its customer that they had changed and had given 120 days notice of the rate change. Clause 5.2 provided that British Gas could send bills based on actual meter readings or estimated meter readings: but clause 5.4 (c) provided that if Angel disagreed with any amount for which they have been billed they would give reasons for disputing the bill and pay at least 75% of the full amount by the date it was due to be paid. If payment in accordance with that obligation resulted in an overpayment then BG promised to credit the excess charge to Angel’s account.

Clause 2.7 (b) provided that either Angel or BG could end the contract at the end of the initial period or of any renewal period by giving 90 days notice. If the contract ended but no new terms had been agreed then the General Conditions version 5 provided that BG would continue to supply energy but at what were (in effect) “standby” rates. Clause 10.2 was an “entire agreement” clause. By clause 10.3 (apart from changes to the charging rate) changes in the supply contract only took effect when put in writing and signed on behalf of both Angel and BG.

The Acceptance Forms were signed and dated on 16 December 2008. But before they were returned to BG there was an e-mail exchange. Angel wrote at 9:15 am on 18 December 2008 asking BG’s representative to confirm (amongst other things) “guarantee every bill will have an actual reading” and

“We can cancel a property for either a landlord handback, sale of a property, or a private tenant moving in who is reasonable for paying their own bills. This can also be done at any time i.e if we have not told you for 6 months then you will credit us back.”

At 13:03 a representative of BG e-mailed back confirming that “these all apply in our agreement with yourselves”. Angel then returned the Acceptance Forms which confirmed that the entire agreement was to be found in the General Conditions and that any prior arrangements were cancelled. It is these events that give rise to the dispute about the terms of the SME supply contract.

BG supplied Angel’s properties with energy under these contracts. Each month BG would deliver a statement of and invoices for the energy charges falling due in that month, identifying the property, the invoice number that related to that property, the charge in respect of that property (or the credit due upon an actual reading following of estimate) and the reference of the user. But the complexity of Angel’s business operation and the existence of multiple billing sites led to frequent disputes. In October 2008 BG issued County Court proceedings in respect of a sum in excess of £200,000.00 alleged to be due on the Corporate Account (the SME Account not being then in existence). Whilst that defended litigation slowly progressed a further £738,000.00 of alleged arrears accrued in respect of continuing supply on both the Corporate and the new SME Accounts.

Furthermore, the fixed period under the SME Accounts expired, and the question arose what tariff would apply to the renewal period in the light of the existing disputes. In a telephone conversation on 5 July 2010 (of which Angel has a transcript) a representative of BG said “What we were going to look to do is extend the existing prices until the credit issue is resolved”. The conversation concluded with this exchange:-

The matter was not, however resolved. In September 2010 BG issued a winding up petition against Angel which resulted in an immediate interim payment of £500,000 by Angel to BG and the negotiation of a settlement under which Angel paid a total of £732,000 (again on an interim basis with no sum allocated to any particular account).

Angel continued to make irregular “interim” payments; but by October 2011 BG was alleging a total indebtedness in excess of £1.282 million (of which £490,000 was attributable to the Corporate Account and £792,000 was attributable to the SME Account). Demand for payment of this sum led to a further round of negotiations under which Angel made an interim payment £661,000 to BG in February 2012. In the course of those negotiations the solicitors for BG wrote to Angel’s solicitors on 8 December 2011

“For the avoidance of doubt we hereby give your client notice on behalf of [BG] that any agreement to extend the fixed rate pricing entered into on or about 5 July 2010 is hereby terminated with immediate effect and your client is now supplied at [BG’s] standby out of contract tariff”.

This event has been referred to (without prejudging its legal effect) as “the termination”.

Angel’s case is that what lies behind these disputes is the fact that BG bills on the basis of estimates, fails to take account of changes in the identity of the person liable for the energy bill, continually fails to provide proper bills and will not explain the basis of the bills. Accordingly, Angel says that it has paid (albeit on an interim basis) the undisputed part of the bills, and anything that is left is the disputed part of the much larger amount which BG has incorrectly billed the company. But it is common ground that since its last payment on 3 July 2012 Angel has not paid anything at all in respect of energy consumed before or after that date.

On the 22 August 2012 there was a meeting between Angel and BG. Although BG’s note of that meeting is not accepted by Angel, it its common ground that immediately before or immediately after that meeting Angel provided some actual meter readings to BG, and an analysis of some bills: but that Angel did not present a complete or detailed analysis of all items in dispute. BG’s note of the meeting says that Angel explained that it lacked the resources to do so. The general tenor of Angel’s evidence is that it is the nature of BG’s billing (described as “shambolic” in the witness statement of Mr Wooding on behalf of Angel) which has prevented progress.

On the 3 September 2012 BG presented a petition for the winding up of Angel upon the ground that Angel was unable to pay its debts. Paragraph 5(b) of the petition recites that BG “has issued invoices and credit notes and [Angel] has made payment by which the sum of £619,733.60 has become outstanding”. Of this total, £225,590.60 relates to the Corporate Account, and £201,150.54 relates to the SME Account pre-termination, and £192,992.46 relates to the SME Account post-termination.

Paragraph 5(d) deals with the debt alleged to be due on the Corporate Account and explains that:-

“The parties have since October 2010 engaged in a process for resolving all of the Company’s queries. The process has been completed and the Petitioner has re-billed its charges for numerous sites in response to valid queries raised by the Company”.

Paragraph 5(e) of the petition relates to the SME Account pre-termination. It recites the dispute about the tariff payment for supplies and asserts that the sum of £201,150.00 claimed to be outstanding reflects Angel’s position (not BG’s position) on the sums outstanding.

Paragraphs 5(f) to (h) relate to the SME Account post-termination. This part of the petition explains that the sum claimed has been calculated at BG’s standby tariff, it refers to the meetings on the 22 August 2012, it records that on Angel’s behalf Mr Wooding had raised various queries on individual supply sites, and that BG had reviewed the queries raised and confirmed only one potential billing error for which allowance had been made in the calculation of the SME post-termination element of the petition debt.

On 13 September 2012 Angel applied for an injunction to restrain BG from proceeding further upon the petition, and for the petition to be struck out. In a nutshell Angel’s position is as summarised by Mr Wooding in paragraph 103 of his witness statement:-

“It is possible that [Angel] will ultimately have residual liability to [BG]. It is also possible that [Angel] has overpaid and will be due a refund from [BG] the issue is that [Angel] (and the Court) cannot tell which of these is the true position as [BG] has not provided the correct bills. At present there is no ascertainable sum due from [Angel] to [BG]. [Angel] cannot identify any overall number that it is confident is due from [BG] to it or from it to [BG]. Accordingly, there is no way that [Angel] can pay an undisputed part of the petition because there is no undisputed part”.

The principles to be applied in the exercise of this jurisdiction are familiar and may be summarised as follows:-

Mr Harty presented five arguments in support of the application to restrain proceedings on the petition.

The first argument was that the petition should be struck out as an abuse of process because it contained averments which BG knew, when presenting the petition, must have been false. Whereas paragraph 5(d) of the petition said that the process for resolving Angel’s queries on the Corporate Account “has been completed”, in fact the Corporate Account element of the petition debt (£225,590.00) has been further reduced by a credit note so that the sum claimed in the evidence of Mr Jeffery on behalf of BG is only £199,849. Furthermore, whereas the petition alleges debit balances on the SME Accounts of £394,000.00 and that that sum was reached after BG had “reviewed the queries raised” at the meeting on the 22 August 2012, in fact since the petition was presented BG has credited Angel with a further £121,339 said to derive from the information provided on the 22 August 2012. Counsel for Angel therefore submits that the petition contained false averments and ought to be struck out under the Court’s inherent jurisdiction or in exercise of its case management powers under CPR Part 3.

I reject this submission. It seems to me that with an account of this complexity there is every likelihood of a time lag between the number crunching undertaken in BG’s accounting department and the instructions received by the draftsman of the petition and given to the person verifying the petition. As soon as the need for adjustment has come to light it has been communicated to Angel and the petition debt reduced (albeit without formal re-amendment of the petition on each occasion). I do not regard this as an abuse of the court’s process.

The second argument advanced by Counsel for Angel is that the issues are manifestly too complicated, and the court should not embark on any inquiry but simply say it is obvious that there is a dispute and that everything should go off to be litigated in court. I reject that submission. No encouragement should be given to debtors to raise a cloud of objections on affidavit in the hope that the Companies Court will simply say that the issues are all too complicated: indeed anything that the law can do to discourage such behaviour should be done. So I shall consider the arguments, even though the application is made under the constraints of the vacation Applications List.

The third argument advanced by Counsel for Angel was a variation of the first: it is that the petition is abusive because BG has not recognised (by amendment of the petition) that, even on its own case, the whole debt is not due. I have mentioned three of the credits which BG has allowed: but there have been others as BG has continued its billing process (adjusting estimated readings in the light of actual readings and so forth). It is submitted that BG has been deliberately exaggerating its alleged debt in an attempt to put the maximum possible pressure on Angel when it should have known that the alleged debt was not in fact due. The response of BG is that it is continuing to supply Angel’s remaining sites, that it makes no sense to suspend the entire billing process simply because BG has presented a petition, that the billing process will inevitably throw up adjustments to the petition debt, and that when those adjustments amount to credits against the petition debt then BG immediately makes them. There is in my judgment no evidence that BG has exaggerated the invoices which underpin the petition debt for the purpose of subjecting Angel to improper pressure. I decline to strike out the petition on this ground.

The fourth argument advanced by Counsel for Angel was that unless I can specify an exact sum which is due from Angel to BG then I must grant an injunction to restrain further proceeding on the petition: and that I can only reach that exact sum by undertaking a line by line examination of each of the invoices rendered on the Corporate Account and the SME Account for the entire duration of the relationship between Angel and BG. Only in this way would the exact sum and its precise constitution be established, and only in this way could Angel know how much it had to pay and what liabilities were thereby discharged.

I do not accept this submission. On this application the question is whether or not there is an indisputable debt owed by Angel to BG sufficient to support a winding up petition. There may be uncertainty about the precise sum: but the court at this stage is not concerned to determine what could be proved in a winding up. It is concerned to see that the petitioner is indisputably a creditor in a sum exceeding the statutory minimum and so entitled to present a winding-up petition. It will be for the parties to agree or make their own respective judgements about what cannot be disputed and what can properly be disputed (and the court will be alert to identify every case where the winding up process is being used to exert pressure to pay a debt that is bona fide disputed on substantial grounds rather than to litigate it). In Re A Company No.2340 (2001) Mr Justice Blackburne held:-

“At the end of the day the question is whether or not there is a debt owed by [the Debtor] to [the Creditor] over and above £750, sufficient therefore in amount to support a winding up petition, which is not bona fide disputed on substantial grounds. In my judgment, there clearly is. Even making allowance for the various points which [Counsel] has raised, on any view further substantial sums are owing. In my judgment therefore, it cannot be said that if [the Creditor] were now to present a petition to wind up [the Debtor] it would be an abuse of process. True it is that there is a dispute as to the precise amount of the sum to which [the Creditor] is entitled but, on the evidence I have seen, I am satisfied that there is no genuine dispute… as to the existence of an indebtedness on the part of [the Debtor] to [the Creditor] amply sufficient in amount to support a winding up petition. I propose therefore to dismiss this application”.

My approach is the same.

The fifth submission of Counsel for Angel was that if one examines the evidence it is not possible to point to a single penny of the reduced sum which BG now claims as indisputably due or as being free from some claim for set off under some other item on the running account.

The evidence of Mr Wooding on behalf of Angel makes a number of generic complaints about all the invoices delivered by BG (some of which found the petition debt). In summary they are these:-

Although the general nature of these complaints is clear, their actual significance for the dispute about Angel’s indebtedness is not clear. For example, it is not clear from Angel’s evidence whether the dispute over the applicable rate of VAT relating to 12 ½ or 15% of the total invoice amount relates to 5 properties out of the 2000+ properties in Angels portfolio or to 1000 properties (even though the VAT rate that is applied appears on the summary statements and on the individual invoices). (BG says the total sum involved is £2000). I must therefore approach the matter in two stages. First, to decide whether in principle there is a substantial dispute pursued in good faith in respect of each of the alleged deficiencies. Second, to assess whether in the light of that dispute and on the evidence alleged I can be confident that on the balance of probabilities there is a sum in excess of £750 due to BG.

I begin with a matter of general impression. I have read the correspondence and analysed the circumstances in which interim payments have been paid. It is the complaint of Angel that BG operates its relationship with Angel by making exaggerated demands and then accepting reduced sums in settlement. It would I think be equally (if not more) accurate to say that Angel systematically does not pay delivered bills in accordance with the contract of supply, accrues arrears, and then pays very significant sums when litigation is commenced or a petition presented; but throughout the relationship conducts its affairs in such a way as to seek to maintain a sufficient volume of disputes to make it impossible for BG to present a petition. A clear theme of its solicitors’ correspondence over the years is “You cannot present a petition because of the disputes which remain unresolved”: and under the terms of the settlements the sums paid are always expressed to be “interim” and not to be allocated to any particular account. But I am not prepared to brand this commercial stratagem as “bad faith” such that I need not examine whether there are substantial grounds for the disputes raised by Angel. On the other hand, it means that I treat the complaint that BG is unfairly exerting pressure by presenting a petition as of no real weight. Angel has throughout known exactly what game it has been playing.

I am satisfied that the dispute which challenges the propriety of estimated bills on the SME Account cannot be dismissed as having no rational prospect of success. The relationship between the Acceptance Forms, the General Conditions, the “entire agreement” clauses and the exchange of e-mails is worthy of proper examination: and even though Angel has subsequently accepted and paid SME Account bills which are based on estimates (without apparent objection) the issue is at least triable. I am not satisfied on the evidence that there is any substantial dispute as to Angel’s liability to pay estimated bills on the Corporate Account where the General Conditions v. 4 seem clearly to govern the position. I do not accept the submission that a contractual liability to pay an estimated bill cannot properly found a petition debt because at some indeterminate future date an actual reading may demonstrate that there was an overcharge and an unspecified set-off might then be required. It would be a different matter if Angel could demonstrate that there would be a set-off in a sum capable of reasonable estimation.

I accept (somewhat reluctantly) that there is a substantial dispute in relation to the SME Accounts relating to the manner in which BG took account of changes in the occupation of the properties. The evidence on this is extremely thin. In paragraph 3(4) of Mr Wooding’s first witness statement he simply says (in the context of the SME Accounts):-

“Despite having agreed to these terms [BG] failed to actually implement them, for example by … failing to take account of changes in the person who was liable for the gas and electricity at the properties”.

Paragraphs 15-17 of that witness statement, do, however, indicate a very substantial reduction in Angel’s asylum-seeker business, with many asylum-seeker properties either becoming vacant or passing to private tenants: and I would accept that it is not improbable that a mistake or two was made. I also accept that on the evidence there is a dispute in relation to the Corporate Account. During 2010 “a number” of properties had been handed back by Angel to landlords or had been the subject of a change of tenant of which BG had failed to take account in delivering its bills. Angel has not identified what that “number” is.

I accept that there is a substantial dispute over whether on “a number” of accounts BG has billed Angel for amounts that Angel has already paid. But Angel’s evidence once again does not indicate what that “number” is, or assist in the estimation of the size of the problem.

I accept there is a genuine dispute over whether BG has applied the correct VAT rates. But Angel’s evidence does not establish that this error actually occurred in relation to the Corporate Account, nor does it set out how widespread the problem is.

I accept that, in relation to the SME Accounts there is a substantial dispute over the application of the negotiated rates. First, I accept that there is a dispute over the applicability of standing charges having regard to the state in which the Acceptance Forms were returned. Second, I accept that there is a much narrower substantial dispute over the tariff than that argued for by Angel. Angel argued that it should only ever be charged the 2008 rates on the SME Accounts because of the July 2010 telephone conversation. I do not regard it as arguable that (having regard to the full terms of that conversation) the agreement then made was permanent; that provided Angel could keep a dispute of some sort going it was entitled to a deeply discounted tariff. The true bargain made was that the discounted rates would continue in order to afford a reasonable period for negotiation (but could not be regarded as long term): but after 18 months of talking that period of negotiation had come to an end. BG was then entitled to terminate the arrangement and (in the absence of any other agreed rate) the “standby” tariff then applied. I am in no doubt that there was “a termination”. But what I do think is arguable is whether BG was entitled to give immediate notice of termination or whether it had to allow a reasonable period during which Angel could seek to negotiate something between the deeply discounted rate and the above-market “standby” tariff. There is no dispute over the rates (as to standing charges or tariff) applicable to the Corporate Account.

In the light of those conclusions on the alleged disputes, is there any part of the debt that can be fairly said to be beyond dispute? According to BG’s evidence the balance on the Corporate Account was £199,894 at the date of the petition. I will take this as a starting point. The schedule that now supports this sum shows that it includes some invoices delivered after presentation of the petition. These cannot form part of the petition debt. Deducting those from the sums said to be due on the Corporate Account yields a net figure of £182,000.00 (rounded down).

According to the evidence of BG adduced before the hearing (and making full allowance for every point of dispute raised by Angel, even if I have not accepted it, including an additional £23,000 allowance made at the hearing in respect of the “wrong tariff” argument), Angel overpaid on the SME Account by some £75,459. (For these purposes I am ignoring a correction which Mr Jeffrey made to his original methodology which served to increase the sum being claimed by BG: in Angel’s favour I take the lower figure). According to evidence served by Angel during the course of the hearing Angel has overpaid on the “post-termination” SME Account by £59,596. Angel does not say how much it claims to have overpaid on the “pre-termination” SME Account. On that state of the evidence I would propose to take BG’s overpayment figure (since that favours Angel). That overpayment on the SME Account must be deducted from the £182,000.00 which I have provisionally accepted is due on the Corporate Account. This leaves a net balance of £106,541.00.

What disputes arise in relation to that sum? As far as I can see on the evidence the challenge is to overpayment on estimated accounts where actual readings have been supplied, a failure to take account of changes in the occupation of properties provided with gas under the Corporate Account, double payment and levying VAT at the wrong rate. The maximum VAT claim is said by BG to be of the order of £2000: and this is not disputed by Angel. The other matters must be within the knowledge of Angel. It alone knows and controls changes in the occupation of its properties: so it alone can identify where it is still receiving gas bills for properties which it has returned to landlords or in which its has placed its own private tenants. If Angel can say that it has paid twice it must be able to identify the double payments. If Angel can identify that it is being charged estimated amounts when actual readings are available it can identify the scale of the problem. Since it has provided detail in none of these cases I can make no sensible allowance.

If I ask the question “Is there a debt owed by Angel to BG over and above £750 which is not bona fide disputed on substantial grounds?” then I would answer that question in the affirmative. In my judgment there clearly is, even making the allowance for all of the points taken by Angel. I recognise that there is a dispute as to the precise amount, but on the evidence it seems to me plainly to exceed £750 and to be of the order of £100,000.

I shall therefore refuse to grant an injunction restraining further proceedings on the petition.

I will formally hand down judgment at 10am on October 8^th 2012. But I am circulating my judgment in draft in advance of that so that the parties can take such steps as they may be advised in the light of my intended disposition of the case.