wintess satement enclosed with letter from EO solicitors
This is a true copy of the witness statement enclosed with the letter from McDermott, Will & Emery dated 5th February 2009. Dated 4 February 2009 Exhibits "AJS1" to "AJS5" IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION COMPANIES COURT IN THE MATTER OF EDUCATION OTHERWISE ASSOCIATION LIMITED, REG. NO. 0191707 AND IN THE MATTER OF THE COMPANIES ACT 2006BETWEEN: EDUCATION OTHERWISE ASSOCIATION LIMITED - and - (1) KEVIN DENTON (2) LIZELLE DENTON Claimant Defendants FIRST AFFIDAVIT OF ANDREW JOHN SHARPLES I, ANDREW JOHN SHARPLES, European Patent Attorney of McDermott Will & Emery UK LLP, 7 Bishopsgate, London EC2N 3AR, state on oath: 1. I am a European Patent Attorney of McDermott Will & Emery UK LLP who are Education Otherwise Association Limited's (the "Claimant") legal representatives in relation to this matter. I make this Witness Statement in support of the Claimant's application under s.l 17(l)(b) that the court direct that the claimant is not required to, and shall not respond to the applications made by Mr. Kevin Denton ("the First Defendant") and Mrs. Lizelle Denton ("the Second Defendant") (together "the Defendants") the Defendants under s.l!6(l)(a) of the Companies Act 2006 ("the Act"). The facts and matters set out in this Witness Statement are within my personal knowledge (except where otherwise stated). 2. The Claimant is a registered charity and a private company limited by guarantee. The dispute in question relates to a request by the Defendants for copies of, and information contained in, the register of members of the Claimant. 3. The Claimant is willing to facilitate communications between the Defendants and the registered members, forwarding any written communications as appropriate, which the Claimant believes will be sufficient to enable the Defendants to achieve their purposes for obtaining the information. However, the Claimant does not wish to, and does not believe it would be appropriate to grant unqualified access to this information. The Claimant's members are primarily private individuals who have become members of the claimant in order to seek assistance and to assist others with educating their children at home. Many members were not aware that their personal details could be made publically available and are concerned that the confidentiality in their information could be lost. Further, the Claimant is concerned that if they are not able to protect their members' details, the number of registered members will decrease to such an extent as to significantly hamper the Claimant's ability to operate. Since making the registered members aware of the possibility of disclosure of the register of members, a significant proportion of the registered members have sought to cancel their registration. As such, unqualified disclosure of members' personal details would seem to hamper significantly the charitable purposes for which the Claimant was established. Communications Between the Parties 4. On 3 January 2009, the First Defendant wrote to the Claimant, requesting a list of the number and details of the charity membership with voting rights. No other information was provided at this time. There is now shown to me a copy of the correspondence between the parties, included here as Exhibit AJS1. 5. On 9 January, Janet Wilkinson, the company secretary of the Claimant, responded, requesting information required by s. 116 of the Act, and on 13 January, the First Defendant responded by stating that information sought would be "used, to establish my and other Signed Up Members positions with regard to the number of members falling within this category of membership". The First Defendant also explained that the information would be provided to his wife, the Second Defendant, and that the request was not made on behalf of another person or organisation. 6. On 27 January 2009, Alexander Roarke, the executive chair of the board of trustees of the Claimant contacted the First Defendant, stating that the First Defendant's provision of information under Section 116(c) of the Act was ambiguous and requesting a more concise explanation. The officer also explained that the Claimant would be contacting the Second Defendant, in order to obtain the information required under s.l 16(4)(d) of the Act. 7. On 28 January the First Defendant responded, stating that he did not believe there was any ambiguity as to whether the reason he was seeking the requested information was for a proper purpose, but for the sake of clarity stated that "I [the First Defendant] require the information to establish the number of persons who have voting rights and to enable, if required, contact with those voting members for any of the following reasons: General representations regarding the activities of the company, communications in connection with the exercise of member rights under the act, circulating a statement relating to a resolution to be put to a company meeting, communications concerning voting for a particular course of action". The First Defendant also stated that he required a copy of the register of members, rather than simply sight of it. 8. Also on 28 January 2009, the Second Defendant wrote to Mr Roarke, confirming her name and address, and stating that she would share the requested information with her husband, and that she requested the information "to establish the number of persons who have voting rights and to enable, if required, contact with those voting members for any of the following reasons: General representations regarding the activities of the company, communications in connection with the exercise of member rights under the act, circulating a statement relating to a resolution to be put to a company meeting, communications concerning voting for a particular course of action". 9. It is a requirement under s.l 16(4)(d) of the Act that when a party requests information under s.l 16 and the intention is to disclose the requested information to another person, the request must contain the purpose that other person intends to use the information for. For the avoidance of doubt, it is therefore the Claimant's position that the earliest point at which a valid request under s.l 16 could have occurred was 28 January 2009, as only at that point was there any information provided about the proposed use that would be made of the information by other parties to whom the information would be supplied. Accordingly, the Claimant's application to the court is within the five day limit set out at s. 117(l)(b). The Parties'Needs 10. The Defendants' stated reasons for requesting a copy of the register, and the information contained therein, are as follows: (a) to establish the number of persons who have voting rights: (b) to enable, if required, contact with those voting members for any of the following reasons: (i) general representations regarding the activities of the company; (ii) communications in connection with the exercise of member rights under the act; (iii) circulating a statement relating to a resolution to be put to a company meeting; and (iv) communications concerning voting for a particular course of action. 11. The Claimant is prepared to notify the Defendants of the number of members with voting rights upon a decision on this application. 12. With regard to the Defendants' remaining stated reasons, the Claimant's position is that they can all be accommodated by the Claimant forwarding any communications, statements or representations from the Defendants to the members, and by forwarding any communications from the members to the Defendants. Further, the Claimant is prepared to give undertakings to this effect. 13. Given that this proposed course of action would meet the Defendants' needs whilst avoiding detriment to the Claimant, the Claimant requests the court to direct the Claimant not to comply with the Defendants' request, subject to the Claimant making the proposed undertakings. 14. Further, this position is consistent with that adopted by the Court of Appeal in Pelling v Families Need Fathers (2002) 1 BCLC 645, and subsequently by the High Court in Pelling v Families Need Fathers (2002) unreported, copies of which are now shown to me and are enclosed here as Exhibits AJS2 and AJS3 respectively. The facts of these cases are remarkably similar to the facts at issue, and in each case, the court exercised its discretion so as not to compel unqualified access to the register of members, instead requiring undertakings of the claimant similar to those offered by the Claimant. 15. Both of the Pelling cases were decided upon under the Companies Act 1985, rather than the Companies Act 2006. However, under the 1985 Act, there was very little restriction on requesting access to the register of members, whereas the changes made by the 2006 Act were made in order to limit the circumstances in which access to the register of members should be granted. This was explained in the Companies Law Review Steering Group, at paragraph 11.44, which is now shown to me and included here as Exhibit AJS4. Given that the 2006 Act imposes a more restrictive regime than the 1985 Act, the Claimant's believes that the Pelling cases remain good authority. • For all these reasons, the Claimant requests the court to direct, in accordance with the draft order which is now shown to me and included here at Exhibit AJS5. Claimant is not required to, and shall not respond to the applications made by the Defendants under s.H6(l)(a) of the Companies Act 2006. SWORN to and subscribed by Andrew John Sharples, European Patent Attorney, McDermott Will & Emery UK LLP Andrew John Sharples The 4 th day of February 2009 Before me, Solicitor / Commissioner of Oaths Address:
|