EMAIL FROM PAUL WHITEHOUSE, CHAIR OF WSRA TO LANGOLLEN WORKS
“From: Paul Whitehouse
Sent: 15 August 2019 16:59
To: Liz McGuinness <email@example.com>
Subject: Locomotive 4160
Dear Liz McGuinness
You currently have this locomotive in your works. We are happy with that.
It is owned by Four One Six O Limited, whose principals are Mike Crees and Paul Johnson. We have this week issued proceedings against them in the High Court (Claim No PT-2019-000658) for restitution of a controlling interest in that company, represented by a special category of share issued to this Association. I attach a copy of the draft particulars.
It is our case that these shares were improperly transferred to them on or about 25 July 2015. If our action is successful we would anticipate the company coming back into the substantial control of this Association.
We would not want to see the locomotive, or any significant part of it, removed from your works during the progress of this litigation.
If you have any questions please do not hesitate to call me.
Chair of Trustees | West Somerset Railway Association
Company Secretary | WSRA (Promotions) Limited
Registered Office: The Railway Station, Bishops Lydeard, Taunton, TA4 3BX
The WSRA is a Company registered in England and Wales No 2968284, and Registered Charity No 1041901
WSRA Promotions Ltd is a Company registered in England and Wales no 3312904”
EMAIL TO LANGOLLEN WORKS FROM SOLICITOR ACTING FOR CREES AND JOHNSON
“Dear Ms. McGuinness,
We act for Paul Johnson and Michael Crees who are directors of and also shareholders in 4160. They have asked us to advise them in connection with the email that was sent to you on 15 August, 2019 at 16:59 by Paul Whitehouse of West Somerset Railway Association (WSRA) regarding the locomotive 4160, currently in your workshops.
We are somewhat surprised that Mr. Whitehouse has chosen to send you a copy of a draft claim against our clients, particularly as the claim has not been served on them.
There are factual inaccuracies in the claim and we will deal with those in the usual way if the proceedings are served on our clients. However, given that you have involved in the situation, we have the following comments to make on behalf of our clients.
1. Our clients are not “the principals” of 4160. The use of that term is seriously misleading. They are two of the three directors of 4160. Mr. Johnson holds c21% and Mr. Crees hold c15% of the voting shares of 4160. This includes the shares in dispute (Shares). Excluding the Shares, Mr. Johnson holds c6% and Mr. Crees holds c0.3% of the voting shares of 4160.
2. The Shares have never been registered in the name of WSRA. They were originally registered in the name of an unincorporated association called West Somerset Railway Association (UWSR) (notwithstanding that an unincorporated association has no legal personality and so cannot hold property in its own name). UWSR was wound up in 1995. No attempt was ever made to transfer the legal ownership of the Shares to WSRA. Accordingly, WSRA has never been a member of 4160. To be a member of a company, a person must have their name entered in the register of members. WSRA has never had its name entered in the register of members of 4160. The use of the word ”restitution” is accordingly misleading.
3. The Shares represent 30% of the issued share capital of 4160. They are not on any measure a controlling interest in 4160. The Shares carry 28,120 votes out of a total of 93,789 votes.
4. The Shares entitle the holders of the Shares to certain veto rights relating to the affairs of 4160 (as set out in Article 3 of the Articles of association of 4160 a copy of which is attached) and the right to appoint one director out of four to the board of 4160.
5. The Shares do not give the holder of the Shares any right to direct the affairs of 4160 beyond the veto rights mentioned above and the right to appoint one of the four directors.
6. As a matter of law, a shareholder, no matter how large or small their shareholding, has no right to direct the day-to-day operations of their company. That is the remit of the directors of the company. Mr. Whitehouse has no authority of any nature whatsoever to seek to issue directions as to what 4160. That authority is vested in the board of directors of 4160.
7. We note that Mr. Whitehouse says “…if our action is successful…” which clearly acknowledges the possibility that it will not be. Our clients request that unless Mr. Whitehouse provides you with clear and unequivocal authority of 4160 to issue directions on its behalf, or until you receive an order of the Court directing otherwise, please do not act on the directions of Mr. Whitehouse or WSRA in relation to locomotive 4160 or any other property of 4160.
Emms Gilmore Liberson”
FOUR ONE SIX 0 LTD
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