Case No. RS20D03594

23.The case then took an unfortunate turn but one that, fortunately, has proved to have no significant ill effects. In the course of obtaining expert evidence as to the valuation of DEF Inc, it came to the attention of the PE company that the parties were going through a divorce. It appears that this was in breach of a covenant in the shareholders’ agreement. Moreover, there had been a further breach at an earlier stage when the parties had not notified the PE Company of a change of Trustees. In one sense, this was more significant as it meant that the Wife still had to sign any agreement reached between the Husband and the PE Company as to the effect of the default. Having said that, both breaches were entirely technical. They did not affect, in any way, the operation of the business and, although I have not heard from the PE Company, it does not seem to me to have done them any credit that they sought to take ruthless advantage of these breaches.24.The PE Company argued that, as a result of the breaches, they were entitled to exercise a clause in the agreement that would have enabled them to acquire the Husband’s entire shareholding, including, according to the Husband, his very substantial preference shares, for only $189,000. It does appear that this was supposed to be “market value” but calculated in accordance with clause 13.3 of the Shareholders’ Deed. The figure of $189,000 would have been a discount, per the Husband at the time, of $25 million. The PE Company was, however, prepared to forego this compulsory purchase if the Husband and Wife agreed to give the PE Company 60% of the voting rights in DEF Inc. This does, of course, have more significance in that it would give the PE Company the ability to control the process for a sale of DEF Inc, although given that the aim of both the PE Company and the Husband is to maximise value and then sell, the difference may be more technical than real. This proposal was made on 11 October 2021. 25.The Husband’s solicitors in this jurisdiction drew this development to the attention of the valuer of the shares, Mr I of ABCD Advisory on 21 October 2021 and copied in the Wife’s English lawyers. The documentation sent included a detailed letter of advice from a lawyer from Country X dated 19 October 2021. In essence, the letter said that the parties had no alternative other than to agree to the terms imposed by the PE Company. Both parties have been incredibly critical of the approach of the other in relation to what then transpired. If I wished to do so, I consider I could be very critical of both. The Wife’s solicitors did not respond until 16 November 2021, some twenty six days later, seeking, perhaps inevitably, considerable further information. The Husband’s team then did not respond to that letter until 15 December 2021, twenty nine days later. By then, the matter had become incredibly urgent. The PE Company required the agreement of both parties, including their respective signatures on a Side Deed, by the close of business on 21 December 2021. The Wife’s team felt extreme pressure as a result of this very short time scale. The Husband’s team, on the other hand, became increasingly exasperated on the basis that, if the Wife did not agree, a very significant asset would be almost entirely lost. Moreover, there was a heated discussion between the parties over the telephone as to the terms on which the Wife might be prepared to sign, in relation to which I will have to make findings of fact. In short, the Husband asserts that the Wife said she did not care about DEF Inc and would only sign if the Husband agreed to Child D remaining in this country and attending the school proposed by her. The Wife denies both comments.26.In any event, on the last day of term, 21 December 2021, the Husband’s lawyers indicated an intention to make an application to the court on short notice that afternoon for a mandatory injunction that the Wife sign the documents. There was some suggestion that they could simply come before me to argue this, but I had four other substantial cases that day. The applications judge was Arbuthnot J but she has limited experience in this work and Sir Jonathan Cohen agreed to take the case. I take the view that, in the circumstances, it was inevitable that an order would be made that the Wife sign. As it was, she agreed during the hearing to do so. Sir Jonathan therefore made a mandatory injunction that she sign but on terms that any deleterious financial consequences should be borne by the Husband, and that the valuation report should be prepared on the basis of the existing shareholding. Regrettably, there remains a costs argument arising out of this hearing.