Earlier this year, in Hawkes v Cuddy [2009] EWCA Civ 261, the Court of Appeal declined to follow the position, adopted in Re Guidezone [2000] 2 BCLC 321 by Jonathan Parker J., that conduct which is not sufficient to found an unfair prejudice petition is necessarily insufficient to found a winding-up petition based on the "just and equitable" ground (see, in particular, para. [107]). Last Friday judgment was given in Amin v Amin [2009] EWHC 3356 (Ch), in which the trial judge, Warren J., considered the Court of Appeal's decision and the relationship between the unfair prejudice remedy (Section 994 of the Companies Act (2006)) and just and equitable winding-up (Section 122(1)(g) of the Insolvency Act (1986)).
Warren J. found the petitioners' allegations of unfair prejudice unfounded but nevertheless recognised that the circumstances may well have founded a successful petition for just and equitable winding-up, although the petitioners had not sought this (see para. [613]). Interestingly, Warren J. also observed, obiter, at para. [584]:
"If the facts are such that a winding up petition on the "just and equitable" ground would succeed but the majority refuse to agree to a winding-up out of court, that conduct might amount to unfair prejudice, the unfairness being to compel the minority to continue to participate in the company when the court would, on this hypothesis, wind it up".
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