Price v The Registrar of Companies & Anor

This is an application for permission to appeal and (if granted) an appeal against the order of Registrar Barber dated 2 March 2016.

The case concerned an application dated 10 April 2014 by Mr Price to restore Pablo Star Ltd (“Pablo Star”) to the register of companies. The application was supported by a witness statement signed by Mr Price and named the Registrar of Companies as the sole Respondent. The application was unopposed and was granted by Registrar Derrett on 13 June 2014. The order, however, contained a number of undertakings by Mr Price to the court. It will be necessary to refer to these undertakings later in this judgment.

On 26 May 2015 Mr Price made an application to amend the undertakings in the order. The application was supported by a witness statement signed by Mr Price and named the Registrar of Companies as the sole Respondent. The application was again unopposed and was granted by Registrar Derrett on 18 June 2015. It contained a different set of undertakings by Mr Price.

Between June 2014 and November 2015 Pablo Star and an associated company Pablo Star Media Ltd (“Media”) have issued proceedings in a number of countries against a number of Defendants claiming damages for breach of copyright in respect of a photograph of Dylan Thomas and Caitlin Thomas known as “Just Married” (“the Photograph”).

One of the Defendants being sued by Pablo Star and/or Media in America and the Netherlands is VisitWales.com. VisitWales.com is the trading name of the administrative division of the Welsh government that promotes tourism in Wales. It is not a legal entity. Thus references to it should be to The Welsh Ministers (“WM”).

On 8 January 2016 the court sealed an application on behalf of WM which had initially been filed with the court on 12 November 2015. In that application WM sought relief that can be summarised. WM sought to be joined in the proceedings and sought order in alternate form. First, it sought declarations that the orders of Registrar Derrett were properly made and that an assignment of copyright between Pablo Star and Media was valid. Alternatively, it sought orders that the restoration was invalid and should be revoked, and that the assignment was invalid and the ownership of the copyright remains vested in the Crown.

The principal ground of the application was that Mr Price’s witness statements in support of the application were seriously misleading and there had been breaches of the undertakings in the two orders.

The joinder application was listed before Registrar Barber on 2 March 2016. It was opposed by Mr Price. However, she granted the application and ordered Mr Price to pay WM’s costs.

As already noted Mr Price seeks to appeal against that decision. On 11 May 2016 Birss J directed that the application for permission to appeal be listed with the appeal to follow if permission was granted. Both the application and the appeal accordingly were heard on 14 October 2016. At the end of the hearing I indicated that permission to appeal would be granted and that judgment on the appeal would be reserved.

There are essentially two grounds upon which Mr Price seeks to appeal against the decision of Registrar Barber. First, he submits that the delay by WM in bringing the application should have been fatal to the application. Second, he submits that Registrar Barber misapplied the law in relation to joinder of parties in applications to restore companies to the register. He submits that the court will only join a party to such an application if that party’s rights are adversely affected. He submits that none of WM’s rights has been so affected.

Mr Todd QC pointed out that this was a case management decision and that an appellate court should be slow to interfere with such a decision. He submitted that the discretion to allow joinder (even after judgment) was significantly wider than submitted by Mr Price. There was a wide general discretion to permit joinder and the decision and reasoning of Registrar Barber was unchallengeable on appeal. He did not accept that any delay was fatal to the application. In any event Registrar Barber’s decision on delay was within her discretion and thus not challengeable on appeal. Registrar Barber’s decision on costs was well within her discretion and thus unchallengeable on appeal.

I have set out above the bare bones of the facts. Before considering the arguments and the reasoning of Registrar Barber it is necessary to set out some of the facts in more detail. As the facts are uncontroversial much of this section is taken from the summary in Mr Todd QC’s skeleton argument.

Mr Price is the director and sole shareholder of Pablo Star.

In August 2011 Mr Price, acting on behalf of Pablo Star, purported to enter into an agreement with Gwendoline Watkins, pursuant to which Ms Watkins allegedly assigned the copyright in the Photograph to Pablo Star.

In February 2013, Mr Price, in his capacity as director of Pablo Star, applied to have Pablo Star struck off the register of companies. That application was eventually acceded to, and Pablo Star was dissolved on 18 February 2014.

Notwithstanding its dissolution, a week later, on 25 February 2014, Mr Price, purporting to act on behalf of Pablo Star, threatened proceedings against New Directions Publishing Inc for copyright infringement. That claim was subsequently issued in June 2014.

Mr Price then applied to have Pablo Star restored to the register of companies. In his witness statement in support of that application Mr Price said (at paragraph 9):

“The sole reason it is sought to restore the name of the Company to the Register of Companies is to allow the Company to pursue specific litigation for damages (for previous breach of copyright which has come to light) and which is actionable by the Company alone and with a good chance of success.”

The application was successful subject to undertakings by Mr Price as to the actions which Pablo Star would take on restoration, as set out in the Order of Registrar Derrett dated 12 June 2014. Pablo Star was prohibited from carrying on business or operating in any way other than to take the necessary steps to pursue claims seeking damages for alleged breach of copyright against three identified prospective defendants: New Directions Publishing Inc, VisitWales.com, and Nancy Galbraith.

On 21 May 2014 Mr Price on behalf of Pablo Star purported to execute an assignment of, inter alia, the copyright in the Photograph to Media. The assignment to Media reserved the right to sue New Directions Publishing Inc., VisitWales.com and Nancy Galbraith to Pablo Star.

Notwithstanding that reservation, on 7 July 2014, Mr Price wrote to VisitWales.com asserting that Media owned the copyright in the Photo and threatening to issue proceedings against VisitWales.com in multiple jurisdictions if it did not pay a substantial settlement sum to Media within seven days.

In response to VisitWales.com’s request to be shown a copy of the agreement assigning the copyright in the Photograph to Media, on 9 July 2014, Mr Price sent a version of the agreement from which the clause reserving to Pablo Star the right to sue VisitWales.com had been redacted (in part), so that VisitWales.com was unaware that any right to sue it was vested in Pablo Star, not Media. VisitWales.com denies any liability (whether to Pablo Star or Media).

Since July 2014, Media has commenced claims for alleged breach of the copyright in the Photo against multiple parties. In addition, in February 2015, notwithstanding the terms of the undertakings given to the court by Mr Price on Pablo Star’s restoration, Pablo Star issued proceedings in two different jurisdictions:

it commenced proceedings in New York for alleged breach of copyright against WM, Tribune Media Service, Pittsburgh Post Gazette (PG Publishing Inc), E W Scripps Co, Colorado Newsfeed, Travel Squire, Richmond Times Dispatch and Miami Herald Media Co; and

it commenced proceedings in Ireland for alleged defamation by Ms Watkins.

On 16 March 2015, WM expressed their concerns to Mr Price as to how Media’s ownership of and threats to enforce its alleged copyright in the Photograph against VisitWales.com were consistent with the undertakings which he had given to the court on Pablo Star’s restoration.

On 26 May 2015, without informing WM, Mr Price applied to the court to amend his undertakings. In support of that application Mr Price said that

“new circumstances have come to light not originally known when I first made my undertakings and some of my subsequent actions may have needed the courts [sic] permission”.

Those new circumstances included the alleged discovery of other copyright infringements by third parties and Mr Price’s subsequent actions allegedly included the purported assignment of copyright in the Photo to Media. In fact, as noted above, the assignment had been executed before the order restoring Pablo Star to the register had been made.

On 16 June 2015, the Court acceded to Mr Price’s application to release him from his original undertakings, substituting varied undertakings which permitted Pablo Star to take the necessary steps to transfer from its ownership, inter alia, copyright in the Photograph and extended the defendants against whom Pablo Star could bring proceedings. The new undertakings did not include permission for Pablo Star to continue with its defamation proceedings against Gwendoline Watkins, of which no mention was made in Mr Price’s witness statement in support of his application. Likewise, Mr Price’s evidence failed to mention the fact that transfer of the copyright in the Photograph had already purportedly been effected via the assignment prior to the restoration order being made, or that the effect of that assignment (if valid) was to transfer the right to bring proceedings against the New Defendants to Media.

Subsequently, Mr Price commenced some further proceedings against The Welsh Ministers in the name of Media rather than Pablo Star. On 4 August 2015, Pablo Star and Media executed an addendum to the assignment, amending clause 4 of the assignment reserving the right to sue VisitWales.com to Pablo Star. Instead, the clause now reads:

“This agreement shall also not affect the Assignors potential actions in America and Canada against (3) Visitwales.com or the so called “Welsh Ministers” (for which the Assignors rights, remedies and potential actions are not transferred and its copyright ownership as far as it relates to those potential actions remains unchanged)”.

In paragraphs 18 – 40 of his first witness statement Mr Lindsey sets out what he describes as WM’s concerns which are said to justify the joinder of WM to the proceedings and the relief that they seek. In summary:

The assignment to Media showed that the three named sets of proceedings was not the sole reason to restore Pablo Star. Mr Price’s first statement was accordingly untrue.

Claims made by Media are a breach of the first undertaking as were claims in America by Pablo Star against Defendants not named in the first undertaking.

Mr Price falsely represented that claims against VisitWales.com were vested in Media and not Pablo Star.

Some of the assertions of fact made by Mr Price in his second witness statement were untrue.

The assignments and the defamation proceedings breached both the first and second undertakings.

Restoration is now governed by s 1029 of the Companies Act 2006. I was shown a number of cases under the Companies Act 1985 where the relevant principles have been considered. It was not suggested by Mr Todd QC or Mr Price that any different principles apply under the 2006 Act.

The three most relevant cases cited to me were Stanhope Pension Trust v Registrar of Companies [1994] BCC 84 CA (“Stanhope”), Re Blenheim Leisure (Restaurants) Ltd [2000] BCC 554 CA (“Blenheim”) and Spring Salmon & Seafood Ltd v A-G of Scotland [2010] CSOH 82 (“Spring Salmon”).

In this case the company was dissolved in 1992 having been the tenant of premises which were ultimately assigned to BCCI which became insolvent. The landlord applied to restore the company to the register to enable it to assert it had a right of indemnity against subsequent assignees. The intermediate assignees applied to be joined and opposed the application on the ground that their right to an indemnity had been irrevocably discharged by the dissolution of the company. The Court of Appeal held the intermediate assignees had a sufficient interest to be joined but their argument was fallacious so that the company was restored to the register.

The leading judgment was given by Hoffmann LJ who at p 90 C – G said:

It is to be noted that Hoffmann LJ distinguished between a case where a third party had rights that were directly affected by a restoration order and cases where the third party merely wants to say that the proposed proceedings by the revived Company have no prospects of success. In the former case the Court should allow joinder; in the latter not.

The company ran three clubs in the west end of London. The company claimed that on entering into occupation of the premises for the clubs concerned it became a subtenant within Pt. II of the Landlord and Tenant Act 1954. In 1998 the directors of the company applied for the company to be struck off the register under s. 652A of the Companies Act 1985 on the basis that it was no longer trading or carrying on business. The directors later admitted that that was an error since that company had been trading and continued to trade. At the time the company was involved in proceedings with the landlords who were seeking possession. When the landlords discovered that the company had been struck off the register and dissolved, they served notices on the Treasury Solicitor, on the basis that any subtenancies had vested in the Crown as bona vacantia, determining the subtenancies pursuant to s. 24(3)(a) of the 1954 Act. The directors made an application for restoration of the company to the register, and the landlords sought to be joined under the RSC, O. 15, r. 6 to argue that the company should not be restored because their s. 24(3) notices would or might be retrospectively invalidated.

The Court of Appeal by a majority held that the landlords were entitled to be joined into the proceedings. Nourse LJ (in the minority) held that it was the long standing practice in the Companies Court was that only the applicant and the Registrar of Companies could be parties. Contrary decisions were wrongly decided and the views of Hoffmann LJ were obiter.

The majority comprised Aldous LJ and Tuckey LJ. At p 571D Aldous LJ noted that Counsel for the applicant accepted that restoration would directly affect the landlord’s rights. However Counsel went on to submit that the fact that the landlord’s rights would be affected was irrelevant. Aldous LJ rejected this argument:

This is not, of course, a passage dealing with joinder directly at all. It is dealing with the discretion at the final hearing of whether to order restoration.

At 573H Aldous LJ expressly approved the passage from the judgment of Hoffmann LJ in Stanhope which I have set out above. He then said:

In substance Tuckey LJ agreed with Aldous LJ. In the course of his judgment he said:

This was a decision of Lord Glennie sitting in the Outer House of the Court of Session. Spring Salmon was struck off the register in 2007. In 2010 HMRC sought to restore the Company in that it was being able properly to investigate its financial position and finally determine its liability for tax. Two of its officers sought to be joined into the proceedings.

The application was refused by the judge. After noting that the Scottish Court was not bound by the English decisions he cited the passages from the decisions in Stanhope and Blenheim to which I have referred. At the end of paragraph 15 he commented on Tuckey LJ’s judgment:

In paragraph 16 he concluded that the two officers’ alleged prejudice stemmed from the fact that their position would revert to what it was before the Company was struck off. Hence, he refused to permit joinder.

I accept, of course, that an appellate court will not usually interfere with a case management decision of a lower court. I also accept that the decision to permit the joinder of WM was a case management decision of Registrar Barber. However, where, as here, there are principles established by the Court of Appeal as to when to allow joinder in restoration proceedings, an appellate court is bound to interfere if the decision of the lower court is not in accordance with those principles. As I understood it, Mr Todd QC did not dissent from this proposition. Thus, the crucial question is whether Registrar Barber’s decision was in conflict with the authorities I have set out above.

At first sight it would appear that the only apparent connection between Pablo Star and WM is that VisitWales.com is alleged to have infringed the copyright in the Photograph the right to sue upon which is now said to belong to Pablo Star only in the USA and Canada.

It is plain from the judgment of Hoffmann LJ that such a potential defendant does not have a sufficient reason to be joined. Its liabilities are not affected by the restoration. All that is affected is the identity of the person entitled to enforce those rights.

In paragraph 15 of her judgment Registrar Barber recognised that WM needed to show more than a simple desire not to be sued. In paragraph 16 she cited the passage from the judgment of Tuckey LJ to which I have referred.

She justified the joinder on two grounds which are contained in paragraphs 17 – 20 of her judgment:

In my view neither of those grounds justify the decision of Registrar Barber. They do not directly affect WM’s rights in the sense explained by the authorities.

I accept that joinder of WM may assist the court in determining whether the court was misled. I do not, however accept that a desire by a third party to assist the court in this way is a proper basis for joinder. It could give rise to a multitude of claims from anyone with a grudge against or who wanted to complain about the Company. It is quite clear from the authorities that the right to be joined into restoration proceedings is an exception to the ordinary practice of the Companies Court. Furthermore, as is clear from the passages from the judgments on Aldous LJ and Tucker LJ to which I have referred it is a limited exception which will not result in large numbers of proceedings being turned into major litigation.

Parliament has entrusted the policing of restoration applications to the Registrar of Companies. It is thus for the Registrar to raise with the court issues of breach of an undertaking and/or misleading witness statements if he chooses to do so. If he does not do so, it is not in my view for anyone else to raise it with the court. All that a disappointed third party can do is to challenge the decision of the Registrar in judicial review proceedings.

Mr Walker, who made brief but helpful submissions on behalf of the Registrar, said that the Registrar took the view that if there were breaches of the undertakings in the restoration order he (the Registrar) was entitled to strike the company off the register again. He further submitted that if the Registrar took that course it would not affect the validity of acts carried out by the company prior to that date. As I heard no detailed submissions on this point I shall not comment on it further.

With great respect to Registrar Barber I cannot accept that the validity or otherwise of the assignment to Media affects WM’s rights. It merely affects the identity of the person entitled to enforce the rights. WM is potentially liable to Pablo Star for breach of copyright in the Photograph. It is common ground that WM is not entitled to be joined to oppose the restoration simply because it is a potential Defendant in the copyright proceedings. It is, to my mind, equally clear that WM is not entitled to be joined to oppose the restoration because Pablo Star may or may not have successfully assigned part of its rights to Media.

I do not accept that there is any true analogy between this case and the example given by Hoffmann LJ from Re Servers of the Blind League in the passage cited above. In that case the residuary legatees had a right to bequests under the will which would have been divested if the order was made. They accordingly had a direct right affected by the order. The same can be said of the intermediate assignees in Stanhope and the landlords in Blenheim.

In my view there is force in the final sentence of the judgment of Lord Glennie cited above. A person is not directly affected if all that happens is that he is restored to the position he was in, or would have been in, had the company not been struck off in the first place.

In paragraph 23 of his skeleton argument Mr Todd QC has sought to justify Registrar Barber’s judgment on four grounds. Ground (a) is a repeat of Registrar Barber’s second reason. Grounds (c) and (d) are a repeat of her first ground. I have dealt with these above.

Ground (b) is a variation of Registrar Barber’s second reason. Mr Todd QC submits that it is not clear if the litigation outside the USA and Canada against WM has been properly instituted. He points out that its validity depends on the validity of the amendment to the assignment. He submits that the power to assign the right to sue outside the USA and Canada was outside the scope of the undertakings given to the Companies Court. The short answer to this submission is that unless and until the restoration order is revoked it is a valid order. Even if it is revoked there is, as Mr Walker pointed out, scope for debate as to the validity of acts carried out when it was in force (including acts such as the original assignment which were validated by it). More importantly, as stated above, doubts about the validity of the assignment do not directly affect WM’s rights.

For all of these reasons I have come to the conclusion that Registrar Barber’s decision did offend the principles laid down by the Court of Appeal in the authorities.

In the light of my views on Mr Price’s second ground of appeal it is not necessary for me to deal with his other grounds of appeal. However, as it was argued I propose to deal with the question of delay quite briefly.

In his witness statements Mr Lindsey sets out the chronology in considerable detail. I shall not lengthen this judgment by repeating it. In paragraphs 6 – 11 of her judgment Registrar Barber dealt with the delay. She found that WM lost no time in trying to get to the bottom of who was entitled to the copyright claims, that Mr Price did not co-operate fully with its enquiries and was critical (in paragraph 10) of the failure by Mr Price to notify WM of his intention to apply for the Amended Order. She did not find the allegation of delay attractive and (by implication) rejected it.

In the light of my view of the authorities Registrar Barber’s criticism in paragraph 10 was not justified. For reasons I have given WM was not entitled to be heard on the application for the amendment of the undertakings.

In the appeal Mr Price concentrated on the delay between August 2015 and January 2016 when the application was issued. I do not propose to decide whether it is correct to take the date of issue as 12 November 2015 (when it was initially lodged) or 8 January 2016. I do, however, think that there is force in Mr Price’s criticism that there was delay in this period.

I have no doubt that the question of delay and any prejudice caused by it is relevant to the question of whether to revoke the restoration order. I am also clear that actions taken by Pablo Star and Media in relation to their various actions for breach of copyright are capable of amounting to prejudice.

However, Registrar Barber was not dealing with the final hearing of the application. She was only considering joinder. In an extreme case it might be obvious that the delay is so great that the objections of the third party are bound to fail. In other cases it seems to me that the better course would be to permit the joinder and allow the delay to be argued as one of the factors to be taken into account in the final hearing.

To my mind this is not an extreme case. Accordingly, I would uphold the decision of Registrar Barber that the delay between August 2015 and January 2016 was not fatal to the application for joinder.

I would allow the appeal. I would refuse the application to join WM as a party and accordingly dismiss the application.

My provisional view is that costs should follow the event.