Case No. CL-2019-000290

(Seafoods) Limited v. Interfish Limited [2018] 2038 (Ch). However, that was a case in which the minority shareholder’s stake was sufficient, under the company’s Articles of Association, to prevent the company from bringing claims against its former directors for breach of fiduciary duty: [151]-[153]. By contrast, Heritage has always been able to and can still pursue such claims, if so advised. EIGL has throughout its period as a shareholder in Heritage been in a position to cause Heritage to pursue those claims, and there is no legal impediment to Heritage or EIGL taking this course. In so far as Mr Morpuss QC relied in his skeleton on the possibility that Heritage’s claims had been waived by clause 7 of the SpA, (a) I have resolved this issue in his favour; and (b) in any event, it could not be an appropriate use of s.994 to allow a shareholder to recover in respect of breaches of fiduciary duty owed to the company simply because the company (and in this case the petitioning shareholder as well) had chosen to settle those claims: Sikorski v Sikorski and another [2012] EWHC 1613 (Ch). 73.Mr Morpuss QC’s second argument was that the loss alleged here – the fact that EIGL had paid more when purchasing the 20% shares than if it had been able to deploy the potential claims against Albion as, in effect “negotiating leverage” – was a different loss from that which Heritage could recover by reason of the Disputed Payments. However, there are a number of reasons why I have concluded that this argument does not have a realistic prospect of success. 74.First, it is necessary to test the “leverage” which EIGL claims it would have had when the price for its 20% share was being negotiated. There could be no question, prior to the sale of the 20% being concluded, of EIGL having a putative unfair prejudice petition in respect of the price it had paid for its interest. At best it (or more properly, Heritage) had claims to recover the Disputed Payments and any loss it had suffered resulting from them. Heritage (and EIGL through its control of Heritage) retains those rights. The suggestion that EIGL might somehow have negotiated a greater reduction in the purchase price than the value of the putative claims to be used as leverage is inherently improbable, and wholly speculative. Indeed in circumstances in which EIGL now has a 100% interest in Heritage, rather than the 80% interest it had at the time it claims it could have used the Disputed Payments as leverage, it is particularly hard to see a credible basis for EIGL contending it has suffered some prejudice over and above the claims open to Heritage at the time the SpA was under negotiation. 75.Second, it is necessary for EIGL to establish a realistic case that it has been prejudiced in its interests as shareholder. I accept that this requirement is not to be too narrowly or technically construed (Lord Hoffmann in O’Neill v Phillips [1999] 1 WLR 1092, 1105). However, the prejudice in question must be “bound up with [EIGL’s] position as a member” (Cool Seas at [113(7)]) or be prejudice to EIGL in its capacity as a shareholder (