Lehtimaki & Ors v Cooper (Rev 1)

Trinity Term

[2020] UKSC 33

On appeal from: [2018] EWCA Civ 1605

JUDGMENT

Respondents:-

(1)        Dr Marko Lehtimäki

(2)        The Children’s Investment Fund Foundation (UK)

(3)        HM Attorney General

(4)        Sir Christopher Hohn

Table of Contents to Lady Arden’s Judgment

OVERVIEW.. 3

Requirements for making the Grant. 4

Only Dr Lehtimäki will vote at the meeting of CIFF on the section 217 resolution. 7

The decisions of the Chancellor and the Court of Appeal. 7

(a)      Judgment of the Chancellor. 7

(b)      Judgment of the Court of Appeal 10

Issues on this appeal 11

Discussion. 13

Summary of conclusions. 13

Issue 1: Is Dr Lehtimäki qua member of CIFF a fiduciary?. 14

(1)      What the term “fiduciary” means and why it matters in this context 14

(2)      Companies as charities. 17

(a)      Backdrop. 17

(b)      Liberal approach taken to charities by the courts. 17

(c)      The recognition of charitable companies by Parliament 18

(d)      The Liverpool and District case and wider points to be drawn from it 21

(3)      Were the courts below in error in holding that the members of a charitable company are fiduciaries?. 25

(4)      My conclusions on the question whether a member is a fiduciary. 27

Mass membership charitable companies. 35

Application of the principles to the facts of this case. 35

Issue 2: Have circumstances arisen with respect to the section 217 resolution in which the Court can exercise its jurisdiction over fiduciaries in relation to Dr Lehtimäki?. 36

The competing positions of the parties. 36

My conclusion on this issue. 39

Issue 3: Does section 217 of the Companies Act 2006 allow the Court to direct a member to exercise his discretion in a particular way when Parliament has provided for members to pass the resolution?. 49

The range of the arguments on this issue. 49

My conclusions on the third issue. 50

WOULD THE COURT HAVE JURISDICTION TO DIRECT DR LEHTIMÄKI TO VOTE IN FAVOUR OF THE SECTION 217 RESOLUTION ON THE BREACH OF FIDUCIARY DUTY ROUTE?. 54

Lord Briggs’ concurring judgment on the breach of duty route. 54

The views of the Chancellor and of the Court of Appeal 55

Submissions on the breach of duty route. 56

Basis of jurisdiction must logically precede the conclusion of breach of duty. 56

The court’s approval may be frustrated by the action of non-fiduciaries. 57

Avoiding a blanket approach to breach of duty. 58

The importance of the subjective test for breach…