the times | Friday August 28 2020 1GM 55
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Where the trustees of a charitable
company had surrendered their
discretion to the court to deter-
mine whether a resolution to dis-
pose of trust money should be
passed and the court concluded
that it should, the court had the
power to order that members of the
company, who owed a fiduciary
duty to the charitable objects of the
company, had to vote in favour of
the resolution.
The Supreme Court so held in
allowing the appeal of the third de-
fendant, Ms Jamie Cooper, from a
decision of the Court of Appeal
(Lord Justice David Richards, Lord
Justice Newey and Dame Eliza-
beth Gloster) ([2019] Ch 139) (sub
nom Children’s Investment Fund
Foundation (UK) v Attorney Gener-
al) which allowed the appeal of the
fourth defendant, Dr Marko Lehti-
mäki, against the order of Sir Geof-
frey Vos, Chancellor ([2018] Ch 371)
that Dr Lehtimäki be directed to
vote in favour of a resolution ap-
proving a grant by the first claim-
ant charity, the Children’s Invest-
ment Foundation Fund (UK)
(CIFF), to another English regis-
tered charitable company, Big Win
Philanthropy, of which Ms Cooper
was the only member. The other
defendants were the Attorney
General and Sir Christopher Hohn.
Lord Pannick, QC, Mr Simon
Taube, QC, and Mr Edward Cum-
ming, QC, for Ms Cooper; Mr Guy
Morpuss, QC, Ms Sarah Wor-
thington, QC, Mr Theo Barclay
and Mr Ryan Turner for Dr Lehti-
mäki; Mr William Henderson for
CIFF; Mr Robert Pearce, QC, for
the attorney-general; Mr Jona-
than Crow, QC, for Sir Christopher
Hohn.
Lady Arden said that the Child-
ren’s Investment Fund Foundation
(UK) (CIFF) was a charitable com-
pany with more than $4 billion in
assets helping children in develop-
ing countries. It was founded by Sir
Christopher Hohn and Ms Jamie
Cooper in 2002, but it became diffi-
cult to manage when their mar-
riage broke down.
To resolve those difficulties, Sir
Christopher and Ms Cooper
agreed that in exchange for a grant
of $360 million, to be paid over five
years, to Big Win Philanthropy, a
charity founded by Ms Cooper, she
would resign as a member and
trustee of the CIFF. The CIFF, Sir
Christopher and Ms Cooper en-
tered into a grant agreement for
that purpose on July 25, 2015.
The main legal issues in the case
stemmed from the special combi-
nation of three factors. First, the
relevant arrangements came about
with a view to resolving the gov-
ernance issues resulting from the
breakdown in the relationship
between Sir Christopher and Ms
Cooper, not for a reason derived
from the activities of the charity.
Second, the CIFF was both a
charity and a company limited by
guarantee (not having a share capi-
tal) formed and registered under
the Companies Act 1985 (a guaran-
tee company). As a guarantee com-
pany, the CIFF had a two-tier gov-
ernance structure, namely mem-
bers and directors, the latter being
called trustees, and the Companies
Act 2006 applied to it.
Dr Lehtimäki was a member of
the CIFF, as were Sir Christopher
and Ms Cooper. They were the
original subscribers to the memo-
randum of association. The CIFF
had no other members.
‘IT IS true, LORD, that the Assyrian
kings have laid waste these nations and
their lands. They have thrown their
gods into the fire and destroyed them,
for they were not gods but only wood
and stone, fashioned by human hands.’
2 Kings 19.17-18 (NIV)Law Report Births, Marriages and Deaths newsukadvertising.co.uk 6 020 7782 7553
Power to order a fiduciary of a
charity to vote for a resolution
Third, the recipient of the grant
under the arrangements was a new
charity established and already en-
dowed by a $40 million payment
made pursuant to a deed of cove-
nant made by Sir Christopher on
July 25, 2015.
Because the making of the grant
involved a conflict of interest on
the part of both Sir Christopher and
Ms Cooper, it was proposed that
only one member, Dr Lehtimäki,
would vote on any resolution re-
quired to carry the grant into effect.
The CIFF applied to the Charity
Commission for approval of the
overall transaction. The Charity
Commission did not give its ap-
proval but instead made an order
under section 115 of the Charities
Act 2011 authorising the bringing
of proceedings to obtain the court’s
approval of the grant and direc-
tions regarding the resolution
under section 217 of the Compa-
nies Act 2006.
The chancellor decided on the
CIFF’s application for directions
that the grant was in the best inter-
ests of the charity and directed the
sole unconflicted member of the
CIFF, Dr Lehtimäki to vote in fa-
vour of a resolution of the mem-
bers of the CIFF to approve it pur-
suant to section 217 of the 2006
Act. Dr Lehtimäki, however, pre-
ferred to be free to exercise his own
judgment on how to vote as a
member.
The overarching question in the
appeal was whether the chancellor
could in law make a direction that
Dr Lehtimäki should vote in favour
of the section 217 resolution. Her
Ladyship concluded that he could.
First, there was a fiduciary rela-
tionship between the charitable
objects of the CIFF and Dr Lehti-
mäki in his capacity qua member of
the CIFF. A member of a charitable
company owed fiduciary duties to
the charitable purposes in relation
to the passing of a resolution such
as the section 217 resolution,
which, if passed, would make poss-
ible a disposition of assets for those
purposes.
Second, the present case was a
rare exception to the non-inter-
vention principle under which the
court did not seek to substitute its
judgment for that of a fiduciary.
The trustees of the CIFF had sur-
rendered their discretion to the
court and the court’s priority was to
see that fiduciaries for the charity
performed their duties in the way
most likely to achieve its continued
existence, notwithstanding what
was, in effect, an existential threat
to the proper governance of the
charity.
Third, the court had jurisdiction
to give a direction to Dr Lehtimäki
to vote in favour of the section 217
resolution and the 2006 Act did
not by implication prevent the
court from making such an order.
However, differing from Lord
Briggs, her Ladyship rejected the
view that the court could found its
jurisdiction on the basis that, sim-
ply because the chancellor had
reached the conclusion that the
grant should be approved on the
trustees’ application, it would be a
breach of fiduciary duty for a
member to threaten to vote other
than in favour of the section 217
resolution.
Lord Briggs, with whom Lord
Wilson and Lord Kitchin agreed,
said that there was a simple al-
though unusual reason why it was
right for the chancellor to direct Dr
Lehtimäki how to cast his vote
under section 217.
The CIFF was a charitable com-
pany, falling under the court’s spe-
cial jurisdiction in relation to chari-
ties. Like a charitable trust the
CIFF was only a charity because its
objects, or its purposes, as laiddown by its constitution were ex-
clusively charitable. The further-
ance of those purposes was en-
trusted primarily to its trustees.
Although their functions were
in most respects indistinguishable
from those of company directors,
like other charitable trustees they
had the power to surrender to the
court the exercise of their fiduciary
discretion about a particular
matter, a surrender that the court
might or might not accept.
If, as in the present case, the
court accepted that surrender, it
would exercise that discretion in
accordance with what it consid-
ered would best further the charit-
able purposes of the company, after
hearing evidence and submissions
from interested parties and from
the attorney-general representing
the Crown as parens patriae.
If the surrender of the trustees’
discretion related to the approval
or disapproval of a particular pro-
posed transaction the court would
have to come to a decision whether
the company’s entry into that
transaction was, or was not, in fur-
therance of those charitable pur-
poses. If the court concluded that it
was, then it followed that those
purposes would not best be fur-
thered by that transaction not
going ahead.
The court’s decision on that
question might be a difficult one,
about which reasonable minds, ac-
tivated by nothing less than the
loyal performance of a fiduciary
duty, might well differ. But once the
court’s decision about the merits of
the transaction had been made
then, subject to any appeal (or per-
haps a significant change in cir-
cumstances before it was imple-
mented), that difficult question
had been finally resolved. It ceased
to be a question for debate.
That decision was binding on all
those interested parties joined to
the relevant proceedings, and the
duty of the charity’s fiduciaries
(whether or not joined as parties)
was to use their powers to the end
that it was implemented, both gen-
erally and in accordance with any
directions which the court might
give for that purpose.
It would be a plain breach of fi-
duciary duty for a relevant fiduci-
ary of the charity to do otherwise, a
fortiori to exercise a fiduciary
power so as in effect to veto the
very transaction which the court
had decided should proceed in fur-
therance of the charity’s purposes.
Where the court had finally de-
cided what was in the charity’s best
interests there could be no reason-
able basis for a fiduciary acting
contrary to that decision and actu-
ally vetoing the transaction which
the court had decided best further-
ed the purposes of the charity. Lord
Reed concurred in the result.
Solicitors: Bates Wells; Macfar-
lanes LLP; Linklaters LLP; Trea-
sury Solicitor; Withers LLP.Supreme Court
Published August 28, 2020
Lehtimäki and others v Cooper
Before Lord Reed, Lord Wilson, Lord
Briggs, Lady Arden and Lord Kitchen
[2020] UKSC 33
Judgment July 29, 2020
St James’s Palace
27th August, 2020
The Princess Royal, President,
Animal Health Trust, this
morning participated in a
Meeting with the Trustees via
video link.Court Circular
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CR-2 020 - 002941
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY
COURTS OF ENGLAND AND WALES
COMPANIES COURT (ChD)
IN THE MATTER OF SUMMIT
THERAPEUTICS PLC
- and -
IN THE MATTER OF THE
COMPANIES ACT 200 6
NOTICE IS HEREBY GIVEN that a
Part 8 Claim Form was on 17th July
2020 issued in Her Majesty’s High
Court of Justice (the “Court”) by the
above-named company seeking the
sanction of the Court to a scheme off
arrangement under section 899 of the
Companies Act 2006 (the “Scheme”)
between Summit Therapeutics plc (the
“Company”) and the holders of the
Scheme Shares (as defined in the
Scheme) and the confirmation of a
reduction of capital of the Company
under section 648 of the Companies
Act 2006 by the cancellation and
extinguishing of the Scheme Shares on
terms that the reserve arising in the
books of accounts of the Company as a
result of such cancellation be applied in
paying up in full at par such new
ordinary shares of one pence each in
the capital of the Company as shall be
equal to the number of Scheme Shares
cancelled, such new shares to be
allotted and issued to Summit
Therapeutics Inc., a company
incorporated in Delaware.
AND NOTICE IS FURTHER given that
the said Claim Form is directed to be
heard before a Judge of the High Court
of England and Wales at 7 Rolls
Buildings, Fetter Lane, London EC4A
1NL on 16 September 2020.
ANY creditor or shareholder of the
Company desiring to oppose the
making of an Order for the sanction off
the Scheme and the confirmation off
the reduction of capital should attend
at the time of the hearing in person or
by Counsel for that purpose.
A copy of the said Claim Form will be
furnished to any such person requiring
the same by the undermentioned
solicitors on payment of the regulated
charge for the same.
Dated the 28th day of August 2020.
CMS Cameron McKenna Nabarro
Olswang LLP
Cannon Place
7 8 Cannon Street
London EC4N 6AF
Tel: 020 7367 3000
Fax: 020 7367 2000
Ref: JPK/GMG/160319.0000 6
Solicitors for the above-named
CompanyIN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY
COURTS IN MANCHESTER
INSOLVENCY AND COMPANIES
LIST (ChD)
Claim No. CR-2020-MAN-00024 8
In the Matter of The Barkby Group
plc (CRN: 07139678)
And in the Matter of the Companies
Act 2 006
NOTICE IS HEREBY GIVEN that on the
25 June 2020, an order of the High
Court of Justice, Chancery Division (the
Order) confirmed a reduction of the
Company's share premium account and
cancellation of its capital redemption
reserve, reducing the capital of the
Company from £44,120,665.51 to
£35,859,679.90, which was approved by
a special resolution of the Company
passed on 6 January 2020. A copy off
the Order and the accompanying
statement of capital approved by the
Court were registered by the Registrar
of Companies for England and Wales
pursuant to section 649 of the
Companies Act 200 6 on 1 2
August 2 020.
Dated: 28 August 2020
Kuit Steinart Levy LLP, 3 St Mary’s
Parsonage, Manchester, M3 2RD
Solicitors for the CompanyCR-2 020 - 002801
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY
COURTS OF ENGLAND AND WALES
COMPANIES COURT (Ch D)
IN THE MATTER OF OCTOPUS
TITAN VCT PLC
AND IN THE MATTER OF THE
COMPANIES ACT 2 006
NOTICE IS HEREBY GIVEN that the
Order of the High Court of Justice
Chancery Division dated 4 August 202 0
confirming the cancellation of the
amount standing to the credit of the
share premium account of Octopus
Titan VCT plc (the “Company”) as at
31 October 2017 resolved on and
effected by a special resolution passed
at an annual general meeting of the
Company held on 26 May 2020 and the
statement of capital approved by the
Court were registered by the Registrar
of Companies on 10 August 2020.
Dated the 28th day of August 202 0
Howard Kennedy LLP
No. 1 London Bridge, London, SE1 9BG
Solicitors for the CompanyMORRISPatricia (née Holton) on 23rd
August 2020, author and
publisher, died peacefully at home
in Cornwall surrounded by her
family. Much loved mother,
grandmother, greatgrandmother
and friend.
Her love was abundant.SINCLAIR Angus McGibbon (Gus) on
19th August peacefully at home
surrounded by his family.Darling
husband of Caroline, adored father of
Victoria and Christopher and proud
Guffah to six. Funeral private, KneesUp
in the Pub when circumstances permit.
No flowers but donations if desired to
Phyllis Tuckwell Hospice, Farnham.
Enquiries, including the possibility of
attending the funeral via Zoom, to
[email protected], Tel:
01364 643 5 22.CARVER Ralph, Sydney died peacefully
on 20th August 2020, aged 81 at The
Royal Surrey Hospital, Guildford. Much
loved by his wife Frances and his
daughter Melanie and sons Marc and
David, he will be greatly missed.
Private funeral September 11 th. No
flowers please but donations, if
desired, to Macmillan Midhurst.All
enquiries to G.M. Luff, Undertakers,
[email protected]GILBERT Isobel (née Petrie) on 25th
August 2020, aged 90 Peacefully at
Springfield House Nursing Home,
Cobham, Surrey. Beloved wife of the
late Owen, much loved mother of
Judith, Ruth and Adam, grandmother off
Jemma, Elena, Sarah, Lucy, Alexandra
and Harriet, great grandmother of
Henry and Maud.All enquiries to
James & Thomas Funeral Directors,
Cobham.ROBINSON Nigel George Douglass
MBE Col (Ret'd) died peacefully on
24th August 2020, aged 80 following a
short illness.Much loved husband of
Jean, father of Mark and Helen and
wonderful Pa to his 6 granddaughters.
Private funeral. Memorial to follow
when possible.OXBY Richard Alban Howard. died on
25th August 2019, aged 96 years at his
home in tuoro- sul- trasimeno perugia
italy.loving memories of an honourable
and brave man. translator,musician,
writer, sailor.a life well lived.truly
missed, your genni. (second wife, artist
jennifer durrant.)WILLETT JACK died peacefully on
11th June 2020, aged 90 at his Florida
home. International business man,
beloved husband to Stella, father of
five, grandfather of 9 and great
grandfather to five. Eternal peace to a
truly wonderful man.MRJ.PRESLAND
AND MSC.MORGAN
The engagement is announced between
James Presland, originally from
Biddenden, Kent to Charlotte Morgan,
originally from Coleford, Forest of
Dean, to the delight of both families.CLEMENCE Terence John on 25th
August 2020, after a short illness.
Beloved husband of Patricia, father of
Sarah, Claudia and Katya and
grandfather to ten much loved
grandchildren.BURCH Edward Brinley (Eddie) died
peacefully on 22nd August 2020, aged
7 9. Dear husband of Judith, he will be
greatly missed by his family and
friends. A memorial service will be held
at a later date.SCOTT Bill of The River House,
Skippool Creek, sadly passed away on
the 24th August 2020. Will be
remembered for his food and
hospitality.
DONALD On 21st August 2 020 to
Blaire (née McColl) and James, a son,
Rory Nicholas Chalmers, brother to
RaifeHARRISCaroline Elizabeth Anne (née
Sarre) died peacefully on 23rd August
2020 , She leaves a much loved husband
Iain and daughter Charlotte.FREEDMAN Sidney died peacefully on
18th August 2020, aged 85, at home.Forthcoming
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