Court Details Day 13 Farepak Directors Trial 18 June 2012

 

Cause list Monday, 18 June 2012

Updated: 15 June 2012 16.58 (refresh your browser for the latest version)

The following list is subject to change until 4.30pm. Any alterations after this time will be telephoned or emailed direct to the parties or their legal representatives.

IN THE HIGH COURT OF JUSTICE

 

CHANCERY DIVISION

 

 

COURT 26

Before MR JUSTICE PETER SMITH

Monday, 18 June 2012

At half past 10

GENERAL LIST

Part Heard

584 of 2011 In the matter of European Home Retail plc and in the matter of Farepak Food & Gifts Ltd

Skeleton Argument for Sir Clive Thompson & Non Executive Directors EHR/Farepak

Skeleton Argument Sir Clive Thompson & Non Executive Directors

 

 

This opening skeleton argument is filed on behalf of the 2nd, 5th, 6th and 9th Defendants (referred to collectively below as “the EHR Non-Executives”), being Mr Neil Gillis (“Mr Gillis”), Mr Michael Johns (“Mr Johns”), Mr Paul Munn (“Mr Munn”) and Sir Clive Thompson (“Sir Clive”). The Secretary of State (“SoS”) seeks Disqualification Orders against each of them under section 8 of the Company Directors’ Disqualification Act 1986 (“CDDA 1986”) on the grounds that the conduct of each of them as a director of European Home Retail PLC (“EHR”) was such as to make them unfit to be concerned in the management of a company.

Skeleton Argument Nicholas Gilodi-Johnson Farepak Food & Gifts Limited

Nicholas Gilodi-Johnson Skeleton Argument

 

 

Mr Gilodi-Johnson is the only son of Bob Johnson, one of the founders of Farepak. In 1993, its shares were listed on the London Stock Exchange. The listed company was Farepak plc. It subsequently changed its name to Kleeneze plc and then to the European Home Retail plc (“EHR”) in 2005. The original Farepak business at this time was carried on by a subsidiary known as Farepak Food and Gifts Ltd (“FFG”).

William Rollason & Stevan Fowler’s Skeleton Argument

William Rollason & Stevan Fowler’s Skeleton Argument

 

This skeleton argument is filed on behalf of the First Defendant (“Mr Fowler”) and the Eighth Defendant (“Mr Rollason”), both of whom were directors of both EHR AND FFG.  Mr Rollason was the Chief Executive of EHR; Mr Fowler was appointed as Group Finance Director on 1 January 2006 and he actually started work on 9 January 2006 (which was after the start of the material period for the allegations). 

Prosecution Skeleton Case against the Directors of EHR and Farepak Food & Gifts Limited

Prosecution Skeleton Case against Defendants EHR and Farepak Food & Gifts Limited

 

Very long read.  If you need any help with the legal jargon, please ask.  We shall be putting this on the Forum also.

Court Details Day 12 Farepak Directors trial – 15 June 2012

Chancery Division – Judges daily cause list

 

 

COURT 26

Before MR JUSTICE PETER SMITH

Friday, 15 June 2012

At 10 o’clock

GENERAL LIST

Part Heard

584 of 2011 In the matter of European Home Retail plc and in the matter of Farepak Food & Gifts Ltd

 

 

Court Details Day 11 Farepak Directors Trial 14 June 2012

Chancery Division – Judges daily Cause list Thursday, 14 June 2012

 

 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION COURT 26

 

 Before MR JUSTICE PETER SMITH

 

Thursday, 14 June 2012

 

 

Not Before half past 10

 

GENERAL LIST

 

Part Heard 584 of 2011 In the matter of European Home Retail plc and in the matter of Farepak Food & Gifts Ltd

Farepak Directors Trial Day 10 – 12 June 2012

Unfairpak would like to advise that all Defendants are innocent unless proven otherwise.

Mr Justice Peter Smith’s Clerk has confirmed to Unfairpak that Mr Peter Johnson of Park is giving evidence today.  We insert herewith passages from the Skeleton Argument for the Secretary of State in relation to Mr Johnson’s evidence relating to the purchase of multi-retailer vouchers.

261. Moreover, although FFG did at a meeting on 15 June 2006 attempt, unsuccessfully, to negotiate improved terms with Grass Roots, there is no evidence to suggest that as at 5 June there was any suggestion from either side that the requirement for upfront payment (which had been taken as read throughout the pre-contractual negotiations) might be open for renegotiation. Indeed, given that there was a binding contract in place, it is hard to see what FFG could in June 2006 have offered Grass Roots as a quid pro quo for Grass Roots permitting a variation of that contract which would have meant it offering credit to FFG on vouchers supplied, or on what basis FFG might have thought there was any prospect of such a variation.

262. The assertion by Mr Rollason that “as it turned out, the ultimate offer from Park was for deferred payment for its multi-retailer vouchers, i.e. exactly the same terms as Choice had provided221 is no answer to the point; the Park deal proposed much later in the year was part of a wider rescue plan involving (amongst other things) a buyout of the assets of FFG, and not an arm’s length commercial deal for the supply of vouchers.

263. The evidence of Peter Johnson of Park is telling in this regard. Park was FFG’s main competitor and a provider of multi-retailer vouchers in its own right. Mr Johnson, who has been a director of Park for over 40 years, says in his evidence:

“As far as I am aware, at the time there was nobody else in the market who offered the terms which Farepak previously enjoyed with Choice (i.e. payment on redemption of the vouchers) and I believe that the prospects of anyone offering replacement vouchers on the same terms were nil. We certainly would not have done so.”

 

Passages taken from Mr Nicholas Gilodi-Johnson’s Skeleton Argument detailing Park II which was rejected by HBOS on 10 October 2006.

1 September 2006 onwards……

142. The bank was ready to appoint receivers with a pre-pack sale to Findel but Findel lowered its offer price and it fell through.

143. This led to what has been referred to as ‘Park II’. The precise details of ‘Park II’ changed over time, but, in essence, by the end of September 2006 it involved

(1) A £3m loan from the Johnson family trusts, subordinated to HBOS;

(2) £1.875m of IWOOT loan notes and £3.1m of earn-out payments to be converted to a loan of £4.975m;

(3) Park to provide a loan of £3.5m (in the form of deferred payment terms (£3m) and an additional £500,000);

(4) Park to acquire FFG for £6m; and

(5) Kitbag to be sold for £15m.

144. On 7 September 2006 a further request had been made to HBOS by FFG to set up a trust account. This was refused the following day. This again was inevitable.

EHR board meeting on 19 September 2006

145. Mr Rollason reported that HBOS had been pursuing a pre-pack solution with Findel up until late on 1 September 2006 but that at the last minute Findel had reduced their offer. HBOS had then decided that their loss on the Findel deal was too large and as a consequence they had expressed an interest in Park II. He set out the then basis on which Park II was proceeding. This offered a real prospect of a solvent solution.

EHR board meeting on 4 October 2006

146. By now Findel had come back on the scene. The purpose of the meeting was to consider giving HBOS permission to speak to Findel and Deutsche Bank to explore the possibility of a sale of the business. The board agreed on the understanding that HBOS had to have regard in any solution to maximising funds to all creditors, and in particular FFG creditors.

147. On 10 October 2006 HBOS telephoned Mr Rollason to say that they would not support Park II and that they wanted him to work alongside PwC to complete a sale of parts of the business to Findel. The board of EHR met on 12 October 2006 and resolved to request HBOS to apoint administrative receivers to EHR.  Partners in PwC were formally appointed on 13 October 2006.

Court Details Farepak Directors Day 10 – 13 June 2012

Cause list Wednesday, 13 June 2012

Updated: 12 June 2012 13.24 (refresh your browser for the latest version)

The following list is subject to change until 4.30pm. Any alterations after this time will be telephoned or emailed direct to the parties or their legal representatives.

IN THE HIGH COURT OF JUSTICE

 

CHANCERY DIVISION

 

 

COURT 26

Before MR JUSTICE PETER SMITH

Wednesday, 13 June 2012

At half past 10

GENERAL LIST

Part Heard

584 of 2011 In the matter of European Home Retail plc and in the matter of Farepak Food & Gifts Ltd

Directors’ Duties in the matter of Uno plc and World of Leather plc [2004]

Unfairpak can confirm that this case has been referred to in the Defendant’s Skeleton Arguments.

 

Directors’ Duties In the matter of Uno plc and World of Leather plc [2004].

 

In this directors’ disqualification case it was accepted by the defendant directors that they were aware that the Group of Companies was in financial difficulties; that they continued to take deposits from cash paying customers; that they failed to segregate those deposits and that they knew that there was a risk that if the Group went into formal insolvency before customers received delivery then the customers would be unsecured creditors and would not receive the goods ordered or the refund of their deposits.

 

The Court agreed, however, with the submission made on behalf of the defendant director that their conduct did not amount to unfit conduct warranting a Disqualification Order. The reason for that was that the Secretary of State had overlooked the all important concession that, at all material times, the defendant directors had reasonable grounds for believing that insolvent liquidation could be avoided.

 

The Judge found that the defendant directors could not be criticised for their conduct. His detailed summary of the directors’ actions in the case showed that:-

 

1. They constantly reviewed the Company’s options.

 

2. They regularly received and considered updated financial infor mation.

 

3. They regularly took professional advice from solicitors and accountancy experts.

 

4. They kept their major creditors and suppliers fully informed of the actions they were taking.

 

5. They had gone out of their way to try and secure a solution which had reasonable prospects of succeeding and which, if achieved, would have satisfied all of the Group’s creditors not least its cash paying customers; and

 

6. They minuted key decisions taken and the reasons for them.