HBOS, FAREPAK AND EHR DIRECTORS

Having only had time to skim read Mr Justice Peter Smith’s statement, we will make the following comments.

Regarding Mr Peter Johnson to be the only person to criticise the Farepak model due to the fact that Park Group Plc ringfence customers’ monies, Park were put in the position of ringfencing customers’ monies due to the collapse of Farepak.  We obviously agree with customers’s monies being ringfenced and the Christmas Pre-payment Association has now traded successfully for almost 6 years.

Regarding what the Directors of EHR/Farepak should have done earlier is basically given the creditors the truth.  The directors advised us of the collapse of Choice but informed us that a new agreement with Grass Roots had been made for Bonusbond vouchers.  Yes, a new agreement had been reached but said agreement required payment up front.  The directors of Farepak must have known they would not have had enough money to pay for the vouchers up front.

Farepak customers were never given a choice over what to do.  We were not told of cashflow problems, we were not told that when Choice collapsed, Farepak would have to pay up front for vouchers and the significance of this fact.  We were not told that EHR’s shares were suspended on 23 August 2006.  If we had been told these very important points, how many of us would have wished our money back?  We suspect practically every single saver and Farepak would have known that also and known that they would never be able to repay us due to the fact HBOS had our money as it was swept up daily from the Farepak account into the EHR account and then directly to HBOS.

Unfairpak still believe to this day that the directors do have questions which require to be answered and we will now not get those answers.  We note Mr Justice Peter Smith has stated that the evidence will be made available for any interested party wishing to read same.  We can confirm that Unfairpak will request said evidence and it does not matter how long it takes us to read same, we will do it and we shall report on it.

Now to matters relating to HBOS.  HBOS is now a wholly owned subsidiary of Lloyds Banking Group.  Accordingly, Unfairpak will now be launching a new campaign and that is to have the money that HBOS took from us, returned.

We note that they are refusing to return any money stating they paid 2 million into the Farepak Response Fund.  This is not good enough! Unfairpak demonstrated, quite correctly, at HBOS in 2006 whilst they sipped champagne inside the HQ in Edinburgh.  We were presented with a letter criticising our campaign and criticising our National Campaign Co-ordinator, Suzy Hall.  This letter can be seen on our forum and also on You Tube you can see Suzy reading out the letter to demonstrators.

Colin Fox, then an MSP was a fantastic ambassador to the cause and came up with the slogan for HBOS of “Hand Back Our Savings”.  That is what we are demanding now.  We want our savings back.  We are, at the present time, ascertaining how much money was swept up to HBOS following suspension of EHR’s shares on 23 August 2006.  Once we have said figure, we shall be demanding same back from Lloyds.

We will fight hard, just as we did in 2006, to get justice for Farepak creditors.  We will not give up this fight until Lloyds repay monies owed morally to Farepak creditors.  HBOS lied and made a mockery of our campaign.  Again, Mr Peter Johnson of Park Group Plc was ‘on the ball’ so far as HBOS was concerned.  He wrote to the Chairman (who we believe to be Andy Hornby) expressing his extreme concern that the rescue package Park II was still sitting with HBOS.  In total it sat with HBOS for 6 weeks.  At first HBOS stated that Park II could be a “neat solution……” yet on 10 October 2006 they rejected said rescue plan and as we all know the entire Group fell into administration.

Unfairpak also wish every single member of ‘higher management’ of HBOS in 2006, investigated by the Treasury Select Committee and made to answer questions on why they rejected every single proposal made to them especially Park II which while they sat on same, millions of pounds were pouring into HBOS’s bank account from the EHR sweep.

We will leave this post as it is just now as we are still awaiting more facts to push our campaign ahead.  Unfairpak won an award for Campaign of the Year in 2007 from the Scottish Herald Politician Awards.  We take that award seriously.  We were honoured to have received same and we shall not continue the work that began in 2006 until we reach a satisfactory conclusion.

 

Court Details 19 June 2012 – FAREPAK DIRECTORS DUE TO START GIVING EVIDENCE

Cause list Tuesday, 19 June 2012

Updated: 18 June 2012 13.07 (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

Tuesday, 19 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 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 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

Collapse of Choice & Consequences of same to Farepak

UNFAIRPAK MUST POINT OUT THAT ALL DEFENDANTS MENTIONED ARE INNOCENT UNLESS PROVEN OTHERWISE.

Taken from Skeleton Argument – THE SECRETARY OF STATE FOR BUSINESS INNOVATION AND SKILLS

 

Collapse of Choice and the consequences thereof

 

176. On 30 January 2006 it became clear that the £12.1m payment due to be made to Choice that day could not be honoured,  and the CHAPS payment order was cancelled.

 On 31 January 2006 FFG paid Choice only some £6.5m of its £12.1m liability.  Choice went into administration the same day, “as a direct result of two major customers failing to pay their January accounts“, according to the joint administrators.


177. The fact that Choice had not been paid in full by FFG was known to Mr Rollason and Mr Fowler contemporaneously, and each of them was involved in discussions with Choice on 31 January.

177.1. Mr Gilodi-Johnson was told by Mr Hicks on Monday 30 January that the £12.1m payment had not been made, and went on to discuss the matter with both Mr Fowler and Mr Rollason shortly afterwards.

177.2. Mr Johns was informed of the administration of Choice by Mr Gilodi-Johnson on 1 February.113

177.3. Sir Clive Thompson learned of the collapse of Choice in a conversation with Mr Rollason on 1 February.114

177.4. Mr Munn’s evidence is that he first learned of the collapse of Choice upon reading an EHR board memorandum of 2 February from Mr Rollason, dealt with further below (the “2 February Memo”).

177.5. The evidence does not suggest that Mr Gillis knew of the collapse of Choice before receiving the 2 February Memo, which he discussed at the time with Mr Munn.116

178. Once the payment to Choice was missed and Choice collapsed, the Defendants knew or should have known that this was because of a lack of funding at the time. They should also have known that there was (at the least) a very high risk that payment terms would change in relation to any substitute supplier of vouchers and they should have been demanding a clear report as to what the effect of the collapse of Choice would mean. The directors should have monitored the position, including requiring appropriate financial modelling. Had they done so, the funding gap identified in forecasts by April 2006 would have come to light significantly earlier. An informed process leading to a decision as to whether to continue trading, and if so on the basis of what plans, could accordingly have been explored a lot sooner.

 

Allegations made by Secretary of State for Business Innovation and Skills

Taken from Skeleton Argument – THE SECRETARY OF STATE FOR BUSINESS INNOVATION AND SKILLS

Unfairpak would like to point out that these are allegations only and all persons named are innocent unless proven otherwise!!!!

5. The allegations of unfit conduct are, in very broad form, as follows:

5.1. Causing or permitting EHR to trade at the unreasonable risk of its creditors for the period from November 2005 (all defendants other than Mr Fowler) to the collapse in October 2006 and for the period from January 2005 to the collapse in October 2006 (Mr Fowler, who only became a director of FFG and EHR in January 2006) and, in the same periods, failing to ensure that that the FFG board was functioning adequately;

5.2. Causing or permitting FFG to trade at the unreasonable risk of its creditors for the period from November 2005 (Mr Rollason and Mr Gilodi-Johnson) to the collapse in October 2006 and for the period from January 2005 to the collapse in October 2006 (Mr Fowler, who only became a director of FFG and EHR in January 2006);

5.3. From 14 November 2005 (Mr Rollason and Mr Gilodi-Johnson) and from 1 January 2006 (Mr Fowler) seeking to mislead, alternatively failing to take adequate steps to inform, the boards of each of FFG and EHR of the developing financial situation in relation to a forecast inability of EHR to put FFG in funds to pay its major supplier at the end of January 2006;

5.4. In February 2006, failing to give any or any adequate consideration to (a) matters set out in a letter of representation provided to the auditors of FFG; (b) whether the financial statements for FFG for the period ending 28 April 2005 gave a true and fair view including by reference to any material post balance sheet events and (c) whether FFG’s auditors should have been informed of an inability of FFG to pay £5.6m due to its major supplier at the end of January 2006 and/or the collapse of such major supplier thereafter (Mr Rollason and Mr Fowler) and, in the case of Mr Rollason, permitting financial statements for FFG for the April 2005 year end to state that they had been approved by the board of FFG when the board had not met and had not approved the same;

5.5. From February 2006, failing to take adequate steps to inform the boards of EHR and FFG of the developing financial situation (Mr Rollason, Mr Fowler and Mr Gilodi-Johnson);

5.6. Seeking to mislead investigators appointed under s447 of the Companies Act 1985 as to the reasons for the failure of FFG, and its financial inability, to pay its major supplier at the end of January 2006 (Mr Rollason and Mr Fowler).