Case No. CL-2019-000290

(1985) 1 BCC 99,467 at p.99,471 … the very wide discretion conferred on the court to do what is considered fair and equitable is `in order to put right and cure for the future the unfair prejudice which the petitioner has suffered at the hands of other shareholders of the company’. If the matters complained of have been put right and cured and cannot recur, it is hard to see how the court could properly give relief”. He continued: “The court on an application to strike out a s.459 petition can look at the realities of the case. It is entitled to take the pragmatic view that the petition should not be allowed to proceed where the likelihood of the trial judge exercising his discretion to grant the claimed relief is so remote that the case can be described as perfectly hopeless”. 69.Peter Gibson LJ further noted at p.552: i)That prejudice will not be unfair to the petitioner’s interests “where the petitioner has available to him a method of bringing that prejudicial state of affairs to an end”. ii)The prejudice caused by Mr Hateley’s conduct could not be said to be continuing simply because he remained a shareholder because “the retention of those shares is not conduct of the company’s affairs or an act or omission of the company”. iii)That “if the remedying of the unfairness was carried out in such a way that the objectionable conduct could not reoccur, then there is no scope for giving relief under s.461 in respect of the matters complained of”. 70.In my view, the points made by Peter Gibson LJ are fatal to Mr Morpuss QC’s argument, and show that this is indeed one of those cases where “the likelihood of the trial judge exercising his discretion to grant the claimed relief is so remote that the case can be described as perfectly hopeless”. Throughout the period to which the Disputed Payments relate, EIGL was in control of Heritage and in a position to ensure that Heritage pursued whatever claims were open to it. That remains the position now, at a point in time when the unfair prejudice petition has yet to be commenced. Neither Mr Buckingham or Mr Atherton has any ongoing role in the management company as a result of the agreements which EIGL chose to enter into in January 2018, or, in the case of Mr Atherton, his resignation some three years ago. 71.Mr Morpuss QC advanced two responses to this argument. 72.The first was to contend (as I accept) that there are cases in which a majority shareholder can bring an unfair prejudice petition, pointing to the decision of Rose J in