Financial Services Authority v Scandex Capital Management (A Company Incorporated Under The Laws Of Denmark) & Anor [1997] EWCA Civ 3006 (16th December, 1997)

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FINANCIAL SERVICES AUTHORITY (Formerly SECURITIES INVESTMENTS BOARD a company limited by guarantee) v. SCANDEX CAPITAL MANAGEMENT (A Company incorporated under the laws of Denmark) and JEREMY BARTHOLOMEW-WHITE [1997] EWCA Civ 3006 (16th December, 1997)

LORD JUSTICE MILLETT: This appeal and cross-appeal raise three short and discrete points under the Financial Services Act 1986 (“FSA”). The first is whether a belief on the part of a person concerned in carrying on by a company of an investment business in the United Kingdom that the company is authorised under the law of a country which is a member of the EEA to carry on investment business that country affords him an arguable defence to an allegation that he has been knowingly concerned in a contravention of Section 3 of the FSA. The second is whether the Court has jurisdiction to make an order for interim payment against such a person. The third, which is only pursued by Mr Bartholomew-White if the first is decided in his favour, is whether the Judge was precluded by RSC Order 62 Rule 8(3) from making an order for immediate taxation and payment of the Plaintiffs' costs.

On 19th December 1996 the Appellant The Securities and Investment Board (“SIB”), now the Financial Services Authority, applied for summary judgment against the Respondent Mr Bartholomew-White and the First Defendant Scandex Capital Management A/S (“Scandex”) for relief arising out of alleged breaches of the FSA. Scandex is in liquidation, and its liquidator has consented to judgment on the principal issues raised by SIB’s claim. On 2nd July 1997, after two hearings each leading to a considered judgment, Carnwath J ruled that the Respondent had no arguable defence to certain of SIB’s claims and granted consequential declarations. These included a declaration that he had been knowingly concerned in the contravention by Scandex of Section 3 of the FSA in respect of each transaction of investment business entered into by Scandex in the United Kingdom. He granted ancillary relief, including orders for accounts and inquiries, but dismissed SIB’s application for an order for interim payment by the Respondent of the sum of £627,522.83, holding that he had no jurisdiction to make an order for interim payment. But for what he perceived to be a want of jurisdiction, the Judge would have ordered the Respondent to pay into Court on account of his liabilities the sum of £470,642.12. That sum represented 75% of the amount which the Judge accepted was shown by the evidence to be the prima facie amount of the Respondent's liabilities. He ordered the Respondent to pay the SIB’s costs, such costs to be taxed and paid forthwith.

The SIB appeals from the Judge’s refusal to make an order for interim payment. The Respondent cross-appeals from the Judge’s ruling that he had no arguable defence to the charge that he was knowingly concerned in the contraventions in question, and from the order for immediate taxation and payment of SIB’s costs.

Prior to 1st January 1996 there was no legislation in Denmark which regulated the carrying on of investment business in that country. In December 1995 the Danish legislature implemented the provisions of the European Council Directive on investment services (93/22/EEC) by enacting for the first time legislation to regulate the carrying on of investment business in Denmark. The legislation contained requirements for authorization and provision for investor protection, and came into force on 1st January 1996. As from that date it was unlawful for a person to carry on investment business in Denmark without having obtained prior authorization from the Danish financial services regulator (Finans). Under transitional provisions, however, persons who were already carrying on investment business prior to 1st January 1996 and who applied for authorization before 30th June 1996 could continue to offer those services without prior authorization until their application was determined or 1st January 1997, whichever was the earlier.

On 28th December 1995 Scandex submitted an application to Finans for authorization to carry on investment business in Denmark. There is some doubt on the evidence whether in fact Scandex began to trade before 1st January 1996 so as to be able to take advantage of the transitional provisions of the Danish legislation, but the Judge appears to have accepted that there was sufficient evidence that this was the case for the purpose of an application for summary judgment.

By the beginning of April 1996 at the latest Scandex was sending letters in standard form signed by or on behalf of the Respondent offering investment services to investors in the United Kingdom. Scandex had not and never has applied for authorization under the FSA to carry on investment business in England. Instead it relied on its entitlement to carry on such business lawfully in Denmark until the determination of its application to Finans. On 26th April 1996 SIB wrote to the Respondent and warned him that Scandex was carrying on business in contravention of the FSA. Despite this Scandex continued to offer investment services in the United Kingdom. Finans eventually refused authorization on 30th September 1996.

In the proceedings SIB allege that Scandex carried on investment business in the United Kingdom in contravention of Section 3 of the FSA, and that the Respondent was "knowingly concerned in the contravention" within the meaning of Section 6(2) of the FSA. In the course of his first judgment given on 26th March 1997 the Judge held that it was necessary to show that the Respondent was

In his second judgment the Judge reconsidered the matter and came to the conclusion that the Respondent was at all times fully aware of all the facts which made the carrying on of investment business in the United Kingdom a contravention of the FSA, that he was to be taken to know the law, and that any mistake which he may have had as to the effect in England of Scandex' ability to carry on investment business lawfully in Denmark under Danish law was a mistake of English law and was as such irrelevant. He accordingly varied the relevant declaration so as to extend it to the period before 26th April 1996 as well as after it.

The Respondent appeals from that decision. He submits that he has raised a triable issue, viz. whether he had an honest belief that Scandex was at the material time authorised to carry on investment business in Denmark and so exempt from the requirement to obtain similar authorization in England. If so, he submits, he did not know that the Danish transitional provisions did not have the effect of authorising Scandex to carry on investment business in the United Kingdom. This, it is submitted, was a mistake of Danish law and not English law, and as such was a mistake of fact and not one which should be dismissed out of hand on the ground that "everyone is bound to know the law."

Section 3 of the FSA provides that no person shall carry on investment business in the United Kingdom unless he is an authorised person under Chapter III or an exempted person under Chapter IV of the Act. The Respondent does not contend that Scandex was an exempted person under Chapter IV or that he ever thought that it was. The question at issue is concerned with the effect of his alleged belief that it was an authorised person under Chapter III.

Section 6(2) gives the Court power, if satisfied on an application by the Secretary of State (now SIB) that a person has entered into any transaction in contravention of Section 3, to order that person and any person who appears to the Court to have been knowingly concerned in the contravention to take such steps as the Court may direct for restoring the parties to the position in which they were before the transaction was entered into.

It is to be observed that it is not sufficient for a person to be subjected to liability under Section 6(2) that he was knowingly concerned in the carrying on of the business; he must appear to have been knowingly concerned in the contravention . The contravention consists of (i) the carrying on of an investment business (ii) in the United Kingdom (iii) by a person who is not an authorised person under Chapter III of the FSA. Before the Respondent can be made liable under Section 6(2), therefore, he must appear to have possessed the requisite knowledge of all three ingredients of the contravention. It is not disputed that the Respondent was knowingly concerned in the carrying on by Scandex of an investment business in the United Kingdom. The sole question is whether he has an arguable case for claiming that he did not know that it was not an authorised person.

There are several routes by which a person may become an authorised person within the meaning of Section 3 of the FSA. The Respondent relies on two of them. One is if the person in question is within the definition of an authorised person in Section 31, which is contained in Part III of the FSA. The other is if the person is a “European investment firm” within the meaning of the Investment Services Regulations 1995 SI 1995/3275 (“the 1995 Regulations”). So far as material, Section 31 of the FSA provides as follows:

(a) afford to investors in the United Kingdom protection, in relation to his carrying on of that business, which is at least equivalent to that provided for them by the provisions of this Chapter relating to members of recognised self-regulating organisations or to persons authorised by the Secretary of State; or

Regulation 5 provides that nothing in Sections 3 and 4 of the FSA shall prevent a European investment firm from providing in the United Kingdom any listed service (which includes an investment service) which it is authorised to provide in its home state. Such a firm is, however, subject to its own particular prohibition contained in Regulation 6. This provides that a European investment firm shall not ( inter alia ) provide any listed service in the United Kingdom unless the requirements of paragraph 1 of Schedule 3 to the Regulations have been complied with in relation to its provision of the service. That paragraph requires (i) the firm to have sent to “the relevant supervisory authority in its home state” a notice specifying its intention to provide a particular listed service in the United Kingdom and (ii) SIB to have received from that supervisory authority a notice certifying that the firm is an investment firm which is for the time being authorised to act as such a firm by the authority and containing the information stated in the firm’s notice. By Regulation 24 a European investment firm or a quasi-European investment firm is excluded from falling within Section 31 of the Act as regards “home-regulated investment business”, which is defined to mean business which its (home) authorization authorises it to provide.

The effect of these convoluted provisions is twofold. First, they disapply the provisions of Section 3 of the FSA in the case of a European investment firm but subject such a firm to Regulation 6, which prohibits it from carrying on investment business in the United Kingdom unless the requirements of paragraph 1 of Schedule 3 to the Regulations have been complied with. This has the effect of imposing further requirements not found in Section 31 of the FSA before the firm can lawfully carry on investment business in the United Kingdom, and (if I have understood the Regulations correctly) is necessary because Regulation 3(1)(d) contains exceptions with the result that some bodies qualify as European investment firms without having complied with these further requirements. Secondly, they prevent a quasi-European investment firm from claiming to be an authorised person pursuant to Section 31 of the FSA. This is necessary in order to prevent such a firm from becoming an authorised person under Section 31 by obtaining authorization in its home state before it has complied with the additional requirements imposed by paragraph 1 of Schedule 3 to the 1995 Regulations.

It is obvious that the word “authorised” in Section 31(1)(c) does not mean merely “entitled”. It cannot sensibly be thought to have been the policy of Parliament to allow anyone to carry on an investment business in the United Kingdom without authorization provided only that he is carrying on such business also without authorization in an unregulated jurisdiction. There are several indications in Section 31 itself that the word “authorised” in Section 31(1)(c) means being in possession of a specific authorization granted by the appropriate supervisory body:

(2). That law must afford to investors in the United Kingdom protection which is at least equivalent to that provided for them by the provisions of Chapter III of the FSA. Chapter III restricts the ability to qualify as an “authorised person” (apart from a few special cases) to members of recognised self-regulating organisations and professional bodies and persons holding an authorization from the SIB. This subjects persons authorised to carry on investment business in the United Kingdom to regulation and disciplinary procedures as well as to vetting processes to ensure that they are fit and proper persons to carry on such a business. No equivalent protection can be afforded in the absence of similar procedures and processes, which must necessarily be applied on an individual basis.

It may be observed that the 1995 Regulations presuppose that a firm is not authorised by Section 31 to carry on investment business in the United Kingdom merely by virtue of its ability lawfully to carry on such a business in another member state. There would be no point in disapplying Section 31 in respect of a quasi-European investment firm, that is to say a firm which has obtained authorization to carry on an investment business in its home state but has not yet complied with the requirements of paragraph 1 of Schedule 3 to the Regulations, if the Section applied to a firm which was not even a quasi-European investment firm because it had applied for but not yet obtained such authorization.

Denmark is a member state within the meaning of Section 31 of the FSA. Prior to 1st January 1996 it was lawful under Danish law for any person to carry on investment business in Denmark without authorization. But as I have explained this did not make it “an authorised person” within the meaning of Section 31 of the FSA.

On 28th December 1995 Scandex submitted an application to Finans for authorization to carry on investment business in Denmark. This enabled it to take advantage of the transitional provisions under Danish law which entitled it to continue to carry on investment business in Denmark after 1st January 1996 without authorization pending the determination of its application. In the meantime, however, it was not a European investment firm or a quasi-European investment firm within the meaning of the 1995 Regulations because it was not yet “authorised to act as an investment firm by the relevant supervisory authority” in Denmark: see Regulation 3(1)(c). Accordingly Regulation 5 did not apply so as to disapply Section 3 of the FSA. Nor merely by making its application for authorization did Scandex become “an authorised person” within the meaning of Section 31 of the FSA.

Had Finans granted authorization, then pending compliance with the requirements of paragraph 1 of Schedule 3 to the 1995 Regulations, Scandex would have become a quasi-European investment firm but not a European investment firm. As such, Regulation 5 would still not have applied to disapply Section 3 of the FSA. Scandex would have come within the definition of “authorised person” in Section 31, but that Section would be disapplied by Regulation 24. Only when Finans granted authorization and the requirements of paragraph 1 of Schedule 3 to the 1995 Regulations were complied with would Scandex become a European investment firm and as such authorised (by Regulation 5 of the 1995 Regulations) to carry on investment business in England.

In his second judgment the Judge resiled from his earlier ruling that the Respondent must be shown to have been aware not only of the facts giving rise to the contravention but also that they involved such contravention. With the benefit of the citation of fuller authority than he had previously enjoyed, he followed the decision in Burton v Bevan [1908] 2 Ch 240 at pp. 246-7, where the question was whether the defendant had "knowingly contravened" a particular statutory provision.

"I think that knowingly means with knowledge of the facts on which the contravention depends. I think it is immaterial whether the director had knowledge of the law or not. I think he is bound to know what the law is, and the only question is, did he know the facts which made the act complained of a contravention of the statute.”

The difficulty with this argument is that the Respondent was at all times fully aware of the position under Danish law. The Judge expressly found that he "had a reasonably accurate understanding of the position under Danish law", and there is no cross-appeal from that finding. He was also fully aware of the relevant facts, viz:

The Respondent has deposed to the fact that he believed that Scandex was "authorised" to carry on investment business in Denmark, but that is not an accurate statement of what he knew to be the facts. The truth is that he knew that Scandex was not authorised by the relevant regulatory body to carry on such a business in Denmark, but was entitled to carry it on without such authorization for the time being. Being authorised and not needing to be authorised are two different things.

It does not matter if the Respondent thought that there was no difference between these two concepts in Danish law. If he made any mistake at all, it was that he believed that, under English law , the fact that Scandex could lawfully carry on an investment business in Denmark without the specific authorization of the Danish supervisory authority was sufficient to authorise it to carry on a similar business in the United Kingdom without the necessary authority under the FSA. That would be a mistake of English law.

Counsel for the Respondent submits that, for all the Respondent knew, the Danish legislation provided that, pending the determination of its application, an applicant for authorization should be deemed to be authorised to carry on investment business in Denmark and that all the provisions relating to investor protection should apply as fully as if he applicant were already authorised. But this would make no difference. Whether a provision of a foreign law has the effect of entitling a person to carry on business in the United Kingdom is a matter of English law. If the Respondent thought that it was a matter of the foreign law, that too was a mistake of English law. To correct the Respondent's mistaken impression, if indeed he had it, it would be unnecessary to consider Danish law or consult Danish lawyers (though even a cursory examination of the information supplied by Finans would be sufficient). It would be enough to consider the provisions of Section 31 of the FSA and the 1995 Regulations. All the facts which took Scandex outside the definition of “European investment firm” in the 1995 Regulations and prevented Scandex from claiming to be an "authorised person" under Section 31 were known to the Respondent. He has no arguable defence to a charge that he was "knowingly concerned" in the contraventions in question. I would dismiss the cross-appeal.

The Judge rightly held that the Court has no inherent jurisdiction to order a payment on account: The Fuoshan Maru [1978] 2 All ER 254. Before him SIB invoked Part 2 of RSC Order 29, implementing Section 32 of the Supreme Court Act 1981, which confers power on the Court to order “interim payment”. This is defined as a payment on account of the sum which a defendant may be found “liable to pay to or for the benefit of a plaintiff”: see Order 29 Rule 9.

The Judge reluctantly accepted the Respondent’s submission that sums recovered from him by SIB in these proceedings are not paid “to or for the benefit of” SIB because they are payable to and enure for the benefit of individual investors and not SIB. In my judgment this conclusion was inescapable, but it is not the end of the story.

Section 6(2) was considered in Securities and Investment Board v Pantell (No. 2) [1993] Ch. 256. The principal judgment was given by Scott LJ. He pointed out that the discretion of the Court ("such steps as the Court may direct") is conferred in very wide terms. The only limitation which could properly be put on those words is that the purpose of the order must be "for restoring the parties to the position in which they were before the transaction was entered into." "The parties" means "all parties" and does not merely mean "the investors". Accordingly, where (as in that case) investors have been induced to purchase shares, any order for repayment to them must be conditional upon their returning the shares. In the present case this particular problem does not arise. The transactions were mainly foreign exchange transactions and dealings in equities were margin transactions; in either case the investors who have lost their money have nothing to show for it.

For present purposes, the significant feature of Scott LJ's judgment is that he emphasised that Section 6(2) is directed to the reversal of specific transactions and does not contemplate orders made for the benefit of investors generally. Accordingly, when considering the form of order which should be made in that case, he said:

It would clearly be inappropriate to make such an order in the present case even as a final order once the accounts and inquiries which the Judge ordered have been completed; and a fortiori as an interim order pending the taking of such accounts and inquiries. Quite apart from the possibility that further claims may emerge, the Respondent has indicated that he is unlikely to be able to satisfy any judgment in full. If so, there will have to be a pro rata distribution to the investors, and this can be achieved only by ordering payment to be made into Court in the first instance.

Does Section 6(2) authorise the Court to order an interim payment into Court? I do not see why not. In Pantell Scott LJ was faced with a different problem. The persons liable to make payment were solicitors and were likely to be able to meet the judgment in full, either out of their own resources or from the proceeds of insurance. The form of order which Scott LJ envisaged was suitable for the case before him. It does not follow that it is suitable for every case or even for the great majority of cases. Nor does it follow that it is the only kind of order which the Court can make even after final judgment. Earlier in his judgment Scott LJ had said

"... the only limitations on the type of order that can be made under Section 6(2) that are justified by the statutory language are that the order must be intended to restore all parties to the transaction to their respective former positions and that the steps directed by the order must be reasonably capable of doing so."

I see no reason why the steps in question must be such as effect immediate restoration in full. The powers conferred on the Court are characterised by their extreme flexibility. In my judgment, they include power to direct the taking of steps which are preparatory to payment to investors, and it is sufficient that they are steps towards the restoration of the parties to their former position so far as possible.

I am satisfied that they include power, after final determination of the necessary accounts and inquiries, to order payment into Court or to a suitable person (who could be an officer of SIB) appointed as receiver, so that a pro rata distribution can be made to investors under the directions of the Court. And if such an order can be made after final judgment when the necessary accounts and inquiries have been completed, then an order for interim payment can be made after interlocutory judgment and before the accounts and inquiries have been taken. The only limitation is that all such orders must be by reference to particular transactions, but so long as this is the case then in my judgment every payment into Court with a view to its later distribution to the parties to a transaction and every payment out of court to one or other of such parties is a step for restoring them to the position in which they were before the transaction was entered into.

In my judgment, therefore, the Judge had power under Section 6(2) of the FSA to make an order for interim payment into Court. He was not, however, asked to make an order under the Section, and has not therefore considered the matters relevant to the statutory discretion. Accordingly, I would allow the appeal, and direct that the case be restored to the Judge to consider whether it is appropriate to make such an order and if so on what terms.

LORD JUSTICE HOBHOUSE: I agree with the judgment of Millett LJ and that the cross-appeal on the knowingly concerned point be dismissed and the appeal on the interim payment point be allowed for the reasons he gives together with the order he proposes. Mr Bartholomew-White was not operating under any material mistake of fact. What he did was done intentionally and with an adequate knowledge of the legal provisions in force in Denmark. On the evidence upon which he relies, the only mistake he made concerned whether the position of Scandex in Denmark gave it any authorisation to carry on investment business within the United Kingdom. His knowing involvement in the contravention of s.3 of the Financial Services Act was made out.

I also agree that there was in this case no power to make an order for interim payment to the Plaintiffs under RSC O.29 r.9 or under any inherent jurisdiction of the Court. ( The Fuohsan Maru [1978] 1 Lloyds 24). But, again in agreement with Millett LJ, I consider that the Court has the jurisdiction to make an order against Mr Bartholomew-White under s.6(2) of the Act. The wording of s.6(2) of the Act is widely expressed -

"If ... the court is satisfied that a person has entered into a transaction in contravention of s.3 above, the court may order that person or any person knowingly concerned in the contravention to take such steps as the court may direct for restoring the parties to the position in which they were before the transaction was entered into."

Provided that they are for the purpose of restoring the parties to the relevant transaction to their previous position, the court is at liberty to direct such steps as it considers will assist to achieve that result. The use of the phrase "such steps as the court may direct for ..." indicates that the court may take it in stages; a number of steps may be required to achieve the restitution.

The right of restitution which is referred to is that included in s.5: a party who enters into an agreement with an unauthorised person is entitled to recover any money or other property paid or transferred by him under the agreement. This is a right specific to a particular transaction and to the person who has entered into the relevant agreement with the unauthorised person. It is not a right which is given to the Secretary of State or the Securities and Investment Board. S.6(2) extends the obligation to make restitution to the person knowingly concerned as a quasi secondary obligor and gives to the Secretary of State and the Securities and Investment Board the right to ask the court to order him to take such steps as it directs to bring about the restitution. The wording of s.6(2) also makes it clear that the restitution must be mutual.

These features of s.6(2) were confirmed and stressed by the Vice-Chancellor and the Court of Appeal in SIB v Pantell [1993] Ch 256. But it was submitted before us that the judgments in that case went further and precluded any order which fell short of effecting a complete restitution as between the parties to the relevant transaction. I do not agree. There was a particular difficulty in that case that the relevant transactions involved the purchase by members of the public of securities which had been delivered to them. It did not follow that all the members of the public would necessarily want to rescind the relevant transaction and return the securities which they had received or indeed whether, in all cases, they would be able to do so. The requirement in s.6(2) that the order be "for restoring the parties to the position which they were in before the transaction was entered into" demonstrated the need to address this point as did the order of the Vice-Chancellor at p.265 and the observations of Scott LJ at p.281 where he also covered the implications of the ' secondary' liability of the person knowingly concerned. It was in this context that they spelt out the implications of what could properly be ordered.

"Subject, however, to the limitations to which I have referred I do not see why any restriction should be placed on the type of order that could be made under section 6(2). The width of the statutory language, "such steps as the court may direct," is striking and there is, in my opinion, no good reason why it should be restricted. Nor, in my opinion, does the statutory language warrant any distinction between the type of order that can be made against the contravener and the type of order that can be made against a person "knowingly concerned" in the contravention. The circumstances of a particular case may, as a matter of discretion, justify a more stringent order against a contravener that would be justified against a person "knowingly concerned", but that is not the point."

Returning to the present case, the investors were persons who had parted with money to Scandex, the unauthorised entity. They never received anything in return; they have no property to return to Scandex. Putting the parties back into the position in which they were before simply involves the return of money to the investors. The relevant transactions and parties are identified and defined in the schedules to the Amended Statement of Claim. The question is therefore what may the Court properly order by way of steps to be taken for the purpose of restoring the money to the investors.

In my judgment there is no objection in principle to directing that, with a view to facilitating such restoration, sums be paid into court or to some person appointed by the court (whether it be a receiver or, maybe, the SIB or its solicitors) to be held subject to further order of the court. Nor is it objectionable in principle that the payment should be a payment on account rather than a full payment which would without more suffice to discharge the liability of the unauthorised person or the person knowingly concerned to make restitution. Similarly it is not objectionable that the step directed does not suffice without more to achieve the reinstatement of the investors. In each case the direction is a step towards the achievement of the statutory objective. It is analogous to an order restraining a party from disposing of funds which may, exceptionally, as part of the enforcement or policing of that order require that sums be paid into an identified account. The fact that there may be inadequate funds available to effect restitution in full does not detract from this conclusion; indeed it may be thought to confirm the prudence of making such a direction. I agree with the order proposed by Millett LJ.

Before parting with this case, I would wish to join with Scott LJ in emphasising the wide words used in s.6(2) and the fact that the breadth of the power which they confer on the Court, on the application of the Securities and Investment Board, to make orders directed to achieving the statutory objective of procuring the restoration of the parties to the position in which they were before the transaction was entered into should not be judicially cut down. The court is given a wide discretionary power and it should exercise it wherever it considers it appropriate to do so in order to assist towards that result.

Order: Appeal allowed. Taxation of costs in respect of appeal to be postponed. Cross-appeal dismissed. Appellant's contribution assessed at nil. Just and equitable that the Legal Aid Board should bear the costs under Section 18 subject to Legal Aid Board applying within 10 weeks to this court. No reference to question of wasted costs to be made. Leave to appeal to House of Lords refused. Legal Aid Taxation of Respondent's costs.

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Financial Services Authority v Scandex Capital Management (A Company Incorporated Under The Laws Of Denmark) & Anor [1997] EWCA Civ 3006 (16th December, 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/3006.html Cite as: [1997] EWCA Civ 3006, [1998] 1 All ER 514

England and Wales Court of Appeal (Civil Division) Decisions

FINANCIAL SERVICES AUTHORITY (Formerly SECURITIES INVESTMENTS BOARD a company limited by guarantee) v. SCANDEX CAPITAL MANAGEMENT (A Company incorporated under the laws of Denmark) and JEREMY BARTHOLOMEW-WHITE [1997] EWCA Civ 3006 (16th December, 1997)