![BL-2022-002117 - [2025] EWHC 2794 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
F.4 Communications crossing the line
F.4 Communications crossing the line
As appears from RBSInternational at paragraphs 65 and 68, the absence of communications crossing the line is usually fatal.
The Claimants say that there was an assumption of responsibility to them and the other sellers of the parent company by the SFA. There are 13 sellers under the SPA. The Claimants are not the majority in value of the shares which were to be sold. There were no communications that crossed the line between the SFA and that group of 13 sellers, or with anyone expressly authorised to act on their behalf as shareholders.
Mr Solomon relied on the following communications with Peter Marples;
Ms Forton’s emails and conversations with Peter Marples asking for information about the sale. From these exchanges, Ms Forton and the SFA knew the basic terms of the proposed SPA including the valuation placed on the business by Trilantic and in broad terms the sums to be invested by Trilantic and the sums to be reinvested and to be extracted by the sellers.
Her emails and calls in November and December 2016 notifying him that a letter approving the change of control was on Sir Peter’s desk.
Peter Marples informing her that the change of control letter was the final step required before the share sale proceeded, and giving the deadline of 23 December 2022 for a response, and the SFA’s acceptance of that position.
These are not communications crossing the line between the SFA and the sellers under the SPA. They are communications between the SFA and the Company. The SFA had been asked by the Company to consider whether or not it would exercise a right of termination under a contract between the SFA and the Company. Peter Marples accepted that the change of control request had been made by him on behalf of the Company. These follow up discussions were between the SFA and the Company. The response when it came was addressed to the Company.
I observe that, in any event, Ms Forton’s request for factual information for the purposes of the SFA’s consideration of the request which had been made, and the subsequent communications as to the timing of a response provide no objective basis for concluding that the SFA had assumed any responsibility to anyone, except at best to provide a response to the Company by 23 December 2016, which it did.
- Heading
- Introduction
- B. The witnesses
- Expert evidence of Vivian Cohen
- C.2 The relevant principles
- C.3 The facts of this case
- C.4 Decision
- D.1 The SFA
- D.2 Carter & Carter
- D.3 The Company and the Funding Agreement
- D.4 2015: The proposed Inflexion acquisiton, Information Memorandum and Baker Tilly report
- D.5 Appointment of Sir Peter Lauener
- D.6 Nick Linford and FE Week
- D.7 2016: The Apprenticeship Levy and proposed Non-Levy Cap
- D.8 Autumn/Winter 2016: The Trilantic Acquisition
- D.9 December 2016: The ‘blood pressure’ email
- D.10 The 13 December 2016 meeting
- D.11 December 2016 – January 2017: The Decision Letter and aftermath
- D.12 Further attempts to sell the business
- D.13 2017-2018: Emergence of irregularities in 3AAA’s records
- E. Misfeasance in public office
- E.2 The pleaded claim
- E.3 Targeted malice - a specific intent to injure
- E.4 Discussion – targeted malice
- E.5 Discussion - untargeted malice
- F. The claim in negligence
- F.1 A duty of care
- F.2 Pure economic loss
- F.3 Assumption of responsibility
- F.4 Communications crossing the line
- F.5 The task
- F.6 A White v Jones lacuna
- F.7 Conclusion on duty of care
- G. Loss
- H.1 “Net Cash Consideration”
- H.2 Value of Claimants’ shares in December 2016
- H.3 The significance of data manipulation
- Conclusions