Case No. CL-2019-000290

) [1990] BCC 605, 625 where he stated: "Mr Oliver asked: ‘If misconduct in the management of the company's affairs does not without more constitute unfairly prejudicial management. what extra ingredient is required?’ In my judgment the distinction between misconduct and unfairly prejudicial management does not lie in the particular acts or omissions of which complaint is made, but in the nature of the complaint and the remedy necessary to meet it. It is a matter of perspective. The metaphor is not a supermarket trolley but a hologram. If the whole gist of the complaint lies in the unlawfulness of the acts or omissions complained of, so that it may be adequately redressed by the remedy provided by law for the wrong the complaint is one of misconduct simpliciter. There is no need to assume the burden of alleging and proving that the acts or omissions complained of evidence or constitute unfairly prejudicial management of the company's affairs. It is otherwise if the unlawfulness of the acts or omissions complained of is not the whole gist of the complaint, so that it would not be adequately redressed by the remedy provided by law for the wrong. In such a case it is necessary to assume that burden, but it is no longer necessary to establish that the acts or omissions in question were unlawful, and a much wider remedy may be sought." 83.In circumstances in which: i)the basis of EIGL’s putative unfair prejudice complaint is alleged breaches of fiduciary duties owed by Mr Buckingham and Mr Atherton to Heritage, which conduct remains actionable by Heritage if EIGL is able to make good its case on the Disputed Payments; ii)it has always been open to EIGL to cause Heritage to pursue those claims; iii)EIGL as the 100% shareholder will obtain the full benefit of any amount recovered; and iv)any connection between Albion, Mr Buckingham and Mr Atherton with Heritage or involvement in the management of Heritage ended some 2 years ago; I have concluded that the gist of EIGL’s complaint is one of misconduct simpliciter. In these circumstances, I can see no realistic prospect of relief taking the form of an order requiring Albion to make a payment to EIGL.