Removal of a director on an ex parte basis: when is such relief appropriate? 单方面罢免董事：此项救济何时适当？

Introduction

引言

In Garofalo v Crisp [2024] EWHC 1737 (Ch), the High Court of England and Wales continued an ex parte injunction which resulted in the removal of Mr Crisp, a director on the board of various companies within the Valorem group of companies (Relevant Companies), and the appointment of new directors, thereby altering the status quo of the companies at the time, on the basis that there was "high degree of assurance" that the petitioner, Mr Garofalo, would succeed at trial of an unfair prejudice petition and the balance of convenience was in favour of continuing the order.

在 Garofalo 诉 Crisp [2024] EWHC 1737 (Ch) 一案中，英格兰和威尔士高等法院继续执行了一项单方面禁制令，使得 Valorem 集团内各公司（以下简称“相关公司”）董事会的董事 Crisp 先生被免职，并任命了几名新的董事，从而改变了各公司的原状，理由是基于申请人 Garofalo 先生在不公平损害呈请庭审中胜诉率很高，且便利平衡原则倾向于继续执行该禁制令。

In this article, we examine the Court's reasoning with an eye on the possible impact this decision may have in the offshore jurisdictions.

在本文中，我们将着眼于该判决可能对离岸司法管辖区产生哪些影响，并分析法院的推理。

Brief facts

案情摘要

This was an ex parte interim application ancillary to an unfair prejudice petition presented by Mr Garofalo[1]. The Relevant Companies were in the business of, inter alia,  the sale of luxury perfumes. Mr Garofalo and Mr Crisp were both shareholders and equal partners and entered into a Relationship Agreement pursuant to which it was agreed that Mr Crisp had free rein to run the business.

该案涉及一项协助 Garofalo 先生提交的不公平损害呈请的单方面临时申请。相关公司的主营业务包括奢侈品香水销售。Garofalo 先生和 Crisp 先生都是股东和地位平等的合伙人，两人签订了一份《关系协议》，根据该协议，双方同意 Crisp 先生可以自由经营企业。

Following Russia's invasion of Ukraine, the UK imposed sanctions on the trade of luxury goods with Russia, and Mr Garofalo and Mr Crisp agreed that the Relevant Companies would cease supplying products to Russia.

俄罗斯武装入侵乌克兰后，英国对与俄罗斯的奢侈品贸易实施了制裁，因此 Garofalo 先生和 Crisp 先生约定相关公司停止向俄罗斯供应产品。

Thereafter, Mr Garofalo discovered that, in breach of their agreement and UK sanctions regulations, Mr Crisp was causing the Relevant Companies to continue fulfilling orders from Russia. Mr Crisp attempted to conceal such sales by recording them in the "Rest of the World" category in management accounts, with management accounts in this form being provided to Mr Garofalo. Mr Crisp also stopped referring to sales to Russian in email correspondence to conceal the truth and made misrepresentations to the Relevant Companies' in-house lawyer that there were no trades with Russia.

此后，Garofalo 先生发现，Crisp 先生违反了两人之间的协议和英国的制裁条例，促使相关公司继续履行来自俄罗斯的订单。Crisp 先生在管理账目中将该等销售记录在“世界其他地区”类别下，并将这种形式的管理账目提供给 Garofalo 先生，试图借此掩饰该等销售。Crisp 先生在电子邮件通信中也并未提及向俄罗斯销售的业务，以此掩盖事实真相，并向相关公司的内部律师作出虚假陈述，称并未与俄罗斯交易。

Mr Garofalo therefore commenced proceedings and sought, inter alia, an ex parte injunction to remove Mr Crisp as a director and to install new directors selected by him.

因此，Garofalo 先生启动了诉讼程序，除要求其他救济外，还寻求了包括单方面禁制令，以罢免 Crisp 先生的董事职务，并任命自己选择的几名新董事。

At the first hearing of Mr Garofalo's ex parte application, the Deputy Judge, applying the "strong prima facie case" test, granted the injunction on the basis that Mr Crisp's removal was the only way to mitigate the threat of the reputational damage to the Relevant Companies and ultimately to their viability arising from the breaches of the relevant sanctions regulations.

在就 Garofalo 先生的单方面申请进行首次庭审期间，暂委法官应用了“初步认定案件证据确凿”之检验标准，认定只有免去 Crisp 先生的董事职务，才能减轻相关公司声誉受损之威胁，并最终减轻违反相关制裁条例对其生存能力造成的威胁，因此批准了该禁制令。

The power to make a change of management order

下达管理层变动命令的权力

The Court has jurisdiction under section 37 of the Supreme Court Act 1981 to grant interim relief in support of an unfair prejudice petition, and the removal of directors by way of interim relief is recognised as relief that is capable of being granted[2]. The test was whether it was just and convenient to grant such an order, although in the ordinary case, intrusion should be kept to the minimum of what the Court considered necessary and appropriate[3].

根据 1981 年《最高法院法》第 37 条，法院享有司法管辖权批准临时救济，以支持不公平损害呈请，而在本案中通过临时救济罢免董事被视为能够获得批准的救济。检验标准是批准此项命令是否公正、适当，但在一般案件中，法院应将变动保持在最低范围内，只在必要和适当时方进行变动。

The Court noted that such an order had been made in Hong Kong[4] where it was described as an exceptional one. This was particularly so in an ex parte application.

法院指出，香港也曾下达过此类命令，而在香港，其被称为“例外命令”。这在单方面申请中尤其如此。

Further, in an unfair prejudice petition, generally, it was desirable to preserve the status quo, or not change it more than absolutely necessary, if a change in the status quo would "affect the remedy which may be available"[5].

此外，在不公平损害呈请中，一般而言，如果原状发生改变会“影响可能获得的救济”，那么在非绝对必要的情况下，最好维持原状，或不改变原状。

The test for granting such relief: serious issue to be tried or high assurance that the applicant will succeed at trial?

批准此项救济的检验标准：是待审理的严重问题，还是申请人在庭审中的胜诉率高？

The "high degree of assurance" test was found to be appropriate for the following reasons:

1. Given the weighty starting point of not intruding into the management of a company, this was an exceptional order that would change that status quo. It also had an immediate impact on the relationship of the parties to the Relationship Agreement. 考虑到不变动公司管理层这一重要出发点，这是一项会改变原状的例外命令。这项命令还对《关系协议》合同双方之间的关系产生了直接影响。
2. The need for caution was particularly great given the unusual application was made without notice. 鉴于提出这一不寻常的申请并未提前通知答辩方，因此尤其需要慎重审理。
3. Whilst not a mandatory order, it was analogous to one as the order was one which "may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action." 此项命令虽然不属于强制性命令，但与强制性命令类似，因为“如果事实证明下达该命令是错误的，则其带来的不公正风险可能会高于仅禁止行动的命令”。
4. In certain circumstances, notwithstanding that as a matter of form, the order was an interim prohibitory one, a high degree of assurance might be required. 在特定情况下，尽管从形式上讲，此项命令是临时的禁止性命令，但仍可能需要满足胜诉率高这一前提。
5. There was a need to be guided more by the injustice that would arise from the Court making the wrong decision, rather than the form of the order. 有必要更多地考虑法院作出错误判决引发的不公正，而不是命令的形式。
6. Whilst this was not the grant of substantially what was sought a trial by way of an interim order, it was an injunction that was taking Mr Crisp significantly further along the path to a buy-out than an injunction simply holding the ring to trial. 虽然下达该命令并不是在批准其实质性寻求的救济，即通过临时命令进行审理，但相比于在庭审前维持原状的禁制令，此禁制令大大促使了 Crisp 先生考虑股份买断这一救济请求。

Therefore, a high degree of assurance was necessary because the fulfilment of this test resonated with the desire to ensure the order carried with it the least risk of injustice.

因此，胜诉率高的保证是有必要的，因为满足这一检验标准符合确保该等命令带来的不公正风险最小之期望。

As the Deputy Judge who first made the order applied a different test, the "strong prima facie case" test, the Court also considered it because, if the Court did not, in its de novo assessment, agree with the Deputy Judge's conclusions, the Petitioner would have had an unfair advantage by reason of the first order.

由于首先作出命令的暂委法官应用了不同的检验标准，即“初步认定案件证据确凿”检验标准，法院也考虑了这一点，因为如果法院在重新审理期间不认同暂委法官的结论，申请人将凭借最初的命令获得不公平的优势。

On the evidence before the Court, the Court found the enhanced threshold test was satisfied, whether it was one that was simply higher than the "serious issue to be tried" test, or the "higher degree of assurance" test, or that Mr Garofalo had a strong prima facie case.

根据提交法院的证据，法院认定，将门槛提高后，无论只是高于“待审理的严重问题”这一检验标准或“胜诉率高”这一检验标准，还是 Garofalo 先生提交的案件经初步认定证据确凿这一标准，该案都能达到并满足检验标准。

Balance of convenience

便利平衡

Bearing in mind that maintaining the status quo is usually desired in an interim injunction and an invasive order would not be made unless there were strong reasons to do so, the time period between the original injunction and the return date becomes a key factor in considering if the balance of convenience is in favour of making the order.

考虑到在临时禁制令中通常希望维持原状，除非有充分理由，否则不会下达侵入性命令，因此，下达原始禁制令之日到返回法院之日的期限成为了考量便利平衡是否支持下达该命令的关键考虑因素。

Where that period is short (e.g., 10-14 days), the conventional approach is to consider the balance of convenience on the basis of the status quo before the wrong or before proceedings are commenced. There are two qualifications to this approach:

如果该期限较短（例如 10-14 天），传统做法是根据诉争的行为之前或启动诉讼程序之前的原状，考量便利平衡。这一做法有两个例外：

1. Where the period is protracted (e.g.,  6 months), a new status quo may have eventuated such that it would be unrealistic for the status quo to be treated as what it was prior to the commencement of proceedings. 如果期限较长（例如 6 个月），原状可能会发生改变，因此将彼时原状视为诉讼程序启动前的原状是不现实的。
2. Status quo is not a decisive matter, otherwise there would be no scope in an exceptional or unusual situation to have an invasive order. 原状不是一个决定性因素，否则就没有在例外或不寻常情况下下达侵入性命令的余地。

The seven-month delay in Mr Crisp returning to Court was a significant factor as there was now a new status quo in place. Restoring Mr Crisp's role, with or without removing the new directors, would lead to the likelihood of insuperable difficulties for the management of the companies in the immediate future. The possibility of reversing what had been done in the intervening period and leaving the parties to it made no commercial sense: the earlier order could not simply be undone without major problems. 

Crisp 先生延误了七个月才返回法院是一个重要考虑因素，因为此时原状已经发生了改变。恢复 Crisp 先生的职务，无论是否罢免新董事，都可能在不久的将来给公司管理层带来无法克服的困难。废除在此期间作出的判决并让各方承受由此产生的影响不具备商业上的合理性：简单地撤销之前下达的命令将会无法避免地出现重大问题。

As for appointing receivers or independent third parties pending trial, that was not a satisfactory solution as:

在审理前指定接管人或独立第三方并不能妥善解决问题，因为：

1. Independent directors would not be able to run the Relevant Companies straight away, rather, they would need time to figure out how to do so; 独立董事无法立即经营相关公司，相反，他们需要时间来搞清楚如何经营；
2. If Court-appointed receivers were in place, that may create a perception of the Relevant Companies having solvency issues, thereby adversely affecting the business; and 法院指定接管人可能会让人觉得相关公司的偿付能力出现问题，从而对企业产生不利影响；以及
3. The costs involved would be significant and prohibitive, whereas the business transition plan started by the without notice injunction was more satisfactory. 这样成本巨大，当事人难以承受，而通过该单方面无通知禁制令启动的业务过渡计划更令人满意。

The Court therefore found that the overall balance of convenience lay with continuing the injunction.

因此，法院认定，要保持总体上的便利平衡就需要继续执行该禁制令。

Comments

评论

This decision illustrates the wide powers available in exceptional circumstances to grant ex parte interim relief in unfair prejudice applications which result in alterations to the status quo.

该判决表明，在特殊情况下，法院有足够大的权力在不公平损害申请中批准改变原状的单方面临时救济。

Whilst the possibility of reconstituting a board through such an application may, at first blush, seem appealing, it bears remembering the high threshold to be met and the very specific and extraordinary facts of the case which led to the continuation of such an order. 

虽然通过该等申请重新组建董事会的可能性乍一看似乎很有吸引力，但需要记住，需要达到的门槛很高，且该案件非同寻常的事实情况使此等命令获准继续执行。

English decisions are persuasive in the Cayman Islands, British Virgin Islands and Bermuda, and it remains to be seen if the offshore Courts will arrive at a similar conclusion should a similar strategy be deployed in an appropriate case.