McKillen v Misland (Cyprus) Investments Ltd & Ors

McKillen v Misland (Cyprus) Investments Ltd & Ors

Permission to amend the pleadings is granted only to the extent that the amendments raise arguable cases, particularly as to shadow directorship (but not de facto directorship or fiduciary duties between shareholders), and provided the pleadings are restructured for clarity. Amendments that are unarguable,...

Source-derived case information.

Parties
Petitioner/claimant: Patrick McKillen; Respondent/defendant: Misland (Cyprus) Investments Limited; Respondent/defendant: Derek Quinlan; Respondent/defendant: Ellerman Corporation Limited; Respondent/defendant: B Overseas Limited; Respondent/defendant: Richard Faber; Respondent/defendant: Michael Seal; Respondent/defendant: Rigel Mowatt; Respondent/defendant: Coroin Limited; Defendant: Sir David Rowat Barclay; Defendant: Sir Frederick Hugh Barclay; Defendant: Maybourne Finance Limited; Defendant: The Trustees of the Sir David and Sir Frederick Barclay Family Settlements; Defendant: National Asset Loan Management Limited
Jurisdiction
England and Wales
Judgment Date
05 March 2012
Procedural Posture
Petition Under Section 994 of the Companies Act 2006 and Associated Part 7 Claim / Interlocutory Application for Permission to Amend Pleadings and for Further Information
Outcome
Partial grant of permission to amend; partial refusal; order for further information.
Legal Topics
Unfair Prejudice, Directors' Duties, Shareholders' Agreements, Fiduciary Duties, Good Faith, Amendment of Pleadings, Shadow and De Facto Directors, Disclosure, Conspiracy, Remedies Under Companies Act
Company Law Civil Procedure Unfair Prejudice Directors' Duties Shareholders' Agreements Fiduciary Duties Good Faith Amendment of Pleadings +4 more

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Parties

Patrick McKillen

Petitioner/claimant

Misland (Cyprus) Investments Limited

Respondent/defendant

Derek Quinlan

Respondent/defendant

Ellerman Corporation Limited

Respondent/defendant

B Overseas Limited

Respondent/defendant

Richard Faber

Respondent/defendant

Michael Seal

Respondent/defendant

Rigel Mowatt

Respondent/defendant

Coroin Limited

Respondent/defendant

Sir David Rowat Barclay

Defendant

Sir Frederick Hugh Barclay

Defendant

Maybourne Finance Limited

Defendant

The Trustees of the Sir David and Sir Frederick Barclay Family Settlements

Defendant

National Asset Loan Management Limited

Defendant

Procedural Posture

Petition Under Section 994 of the Companies Act 2006 and Associated Part 7 Claim / Interlocutory Application for Permission to Amend Pleadings and for Further Information

Legal Issues

  1. 1 Whether permission should be granted to amend the Petition and Particulars of Claim to include new allegations and claims, including shadow/de facto directorship, breach of good faith, and fiduciary duties between shareholders; Whether the amendments are arguable in law and not unduly late; Whether further information should be provided by the claimant regarding events of default under the Shareholders Agreement.

Ratio Decidendi

Permission to amend the pleadings is granted only to the extent that the amendments raise arguable cases, particularly as to shadow directorship (but not de facto directorship or fiduciary duties between shareholders), and provided the pleadings are restructured for clarity. Amendments that are unarguable, confusing, or unsupported by law are refused. The claimant must also provide further information regarding events of default, consistent with his own demands of the respondents.

Court Disposition

Partial grant of permission to amend; partial refusal; order for further information.

Orders

  • Permission granted to amend the Petition and Particulars of Claim only to the extent specified in the judgment, with required restructuring for clarity.
  • Permission refused to plead de facto directorship, fiduciary duties between shareholders, and certain other unarguable or confusing amendments.