Lynton and Barnstaple - Operations and Development

This was on the WSR's main running line from the Main platform

 

Hi Michael when we first took over Woody Bay I recall there was some discussion about paint and the powers that were decided that the windows should be white and the rest of the windows frame and doors should be Black as this would have been the cheapest option back in the day.

 

Correct.

My understanding from multiple sources of what happened at the Board meeting on the 10th of February is as follows. The Board voted 6-3 (Mr Swainson was absent, though he voted by email - is this allowed under the M&As?) in favour of putting the M&As to the Membership. The vote on the M&As is completely legitimate - as was its failure to even reach a majority, much less the 75% required for passage.

Under AOB at that meeting, a letter from six ordinary members who happened to be Trustees was raised by the Secretary after prodding from the Chair. The Secretary read out the letter which refered to the two motions. Crucially, no vote on including the motions was taken, and as the minutes show, the motions themselves were not circulated to the whole Trust Board until after the meeting itself. As such, these motions were not Trust business, they were simply motions from ordinary members (albeit members who happened to be Trustees).

Chris Duffell asked about other motions to be taken forwards on 12 Feb to be told by Mr Nicholson that "The Trust's legal adviser has confirmed that further resolutions cannot be added to the agenda of a general meeting already agreed by the Board." Nicholson refused to allow me to propose similar motions in an email I sent to him on 24 February (attached - I've redacted the email addresses, even though these are already in the public domain before anyone loses their minds.)

As the Board had not agreed the two motions to remove Anne Belsey and Chris Duffell, the Trust's own legal advice should have excluded these two motions.

It did not.

So what is good enough for six ordinary members who happen to be Trustees is good enough for two ordinary members who don't happen to be Trustees. @Lineisclear and the Board majority cannot it have it both ways.

But as we have seen this is not a Board decision - no vote was taken and therefore there was no agreement and this was not Trust business.

By the same token, the six Trustees who proposed this were also conflicted and therefore should not have been allowed to vote, if indeed there was a vote, which there was not.

No one is disputing that these two motions to remove Anne Belsey and Chris Duffell - or the motion that we are currently discussing to remove Mr Miles - complied with the Special Notice requirements. All three motions are compliant.

Except that it doesn't distinguish it all, as the motions to remove Anne Belsey and Chris Duffell were not agreed by the Board at any properly constituted and minuted meeting.

The language of s168(1) is permissive, and in any event, the precedent has been set that ordinary members can in fact table motions under s168(1) to remove Directors - it has just happened. This case differs only in the fact that the current Board majority are presumably opposed to removing Mr Miles.

It would indeed, especially as the precedent that this Board set in allowing ordinary members to table resolutions under 168(1) to remove Directors should apply equally to all ordinary members. .

The Board should follow their own precedent and a fair reading of the law, and put it on the Agenda. If they were confident of victory, then Mr Miles and his friends would presumably have already done so.

I fear that this is exactly where the Board's reckless actions are taking us, completely unnecessarily, wasting Trust resources that could be far better spent advancing the Trust's charitable objectives.

(Edited to correct Mr Swainson voting by email)

 

And I think that makes a nonsense of the companies act and is contrary to common sense. We must agree to differ.

Even if your interpretation is correct though, I think operating in that way is probably not in the best interests of the organisation in its current state. Action to rebuild trust has to be taken.

 

Where is this legally defined in case law rather than your opinion?

 

You could read the contemporary accounts of coach journies to Lynton. On the Lynmouth-Minehead run, Mr Riddell, proprietor of the Torrs Hotel (recently demolished) said that all passengers 'are compelled to sit outside in all weathers because the inside is always full of
luggage. (Some ladies in 1897) at Lynmouth wet through, got chills and were obliged to obtain medical assistance. If a lady and gentleman require a carriage for themselves and their luggage to travel from the hotel to the L & B Railway Station it costs 7s. (35p).'
The fare on the coach to Minehead was 5s 8d single (29p) 8s 6d (42p) return, when an agricultural worker was lucky to earn £1 a week. It took 4 hours and in the westerly direction they had to walk up Porlock Hill on the dusty road (rutted by the drags used by coaches going downhill). Countisbury Hill was 15ft wide, 11ft 6" in places, so sometimes not room to pass each other. The Lynton and Barnstaple route took 3 hours, and involved walking up the hill at Loxhore going north and Parracombe in both directions. There are reports of people numb with cold and or soaked to the skin on top of a coach on arrival. The fare was 5s 6d (27p) single, 9s (45p) return. When the L & B Railway came third class was 1s 7½d (8p) single, 3s 3d (17p) return and took half the time, so it would have been a welcome innovation after a long rail journey to Barnstaple.

 

Ref whether a general meeting is called by a board meeting, s307(2) does state that:

"A general meeting of a public company (other than an adjourned meeting) must be called by notice of—

(a)in the case of an annual general meeting, at least 21 days, and

(b)in any other case, at least 14 days."

That reads to me like the "calling" happens upon the notice being posted.

s309 suggests that the notification of the agm on the website is not considered valid notice, unless all members are made aware of it being there and even then, in a particular format. I have not been formally informed that the notice is on the website, and I guess I'm not alone in that.

However, no Lawyer I, so I could be misreading this.

John

 

I've been quietly watching the Friends of group on Facebook.

Two nominees have now posted long CVs and both are quite interesting candidates.

I think it might be time to drop all the animosity and allow the elections to take place in a peaceful manner.

We have new nominees which many have called for, and the process needs to happen now without a war going on around it, it won't help any of those elected in the long run.

 

The increase in tech and paperless systems has meant that websites are being used more and more for notifications of all manner of previously posted information.

Companies Act 2006 (308) says that notification can be by postal, email or website, or a mix of.

It then goes on to say...

309

Publication of notice of meeting on website

(1)Notice of a meeting is not validly given by a company by means of a website unless it is given in accordance with this section.

(2)When the company notifies a member of the presence of the notice on the website the notification must—

(a)state that it concerns a notice of a company meeting,

(b)specify the place, date and time of the meeting, and

(c)in the case of a public company, state whether the meeting will be an annual general meeting.

(3)The notice must be available on the website throughout the period beginning with the date of that notification and ending with the conclusion of the meeting.

The grey area is (2). If the aim of the notification on a website is to reduce the amount of postal costs, then how is notification given. Unless it is if a member enquires by other means (email or phone) and when notified (or told) that the information is on the website, then it must be in the correct format as indicated.

The key here maybe that it says member, and not members or membership.

 

Fascinating, I think most were glad not to have to endure the stage coaches on all levels, comfort, speed and cost! Many forget that roads were nothing short of a ploughed field much of the time especially as tarmac didn't come along until 1902.

 

@DaveE - the notice couldn't have been given to anyone last Wednesday as nominations for the Trust Board didn't close until Friday.

Failure to put Chris and Steve's motion to the vote is probably illegal and is definitely monumental bad faith - including your man Mr Summers, I'm afraid.

 

I've not commented on Chris, Steve or anyone else. I saw Selsig's post and expanded on the website notification section 309 and trying to decipher what it means. That's it.

 

@DaveE - what I posted is what it means, and the implication is that the Board need to put Chris and Steve's motion to the vote as Motion 1 at the AGM. If Mr Miles and his friends believed he would win, they'd put it on the Agenda. Failure to do so is a violation of their obligations under s168(1) and the general duty of fairness under s172(1)(f) of CA 06.

I think we can all agree that everyone needs to follow the law of the land, don't you?

 

For a flavour of John Bailey (ie @Lineisclear ), see:

 

And I look forward to seeing better results in the next set of NYMR accounts.

However, my concern is broader and more fundamental. Chasing grants is a sound tactical decision - as you say, who would turn down £1m. But, as the arts sector is finding, that funding is capricious and distorting of organisations goals - I recommend the recent Times article by Richard Morrison on how a number of organisations, led by the Wigmore Hall, are actively working for independence from the ACE. A major issue for them, as with their counterparts in Wales and Scotland, is the emphasis on ill-defined goals that distract from their core purposes. That is a charge you have faced at NYMR, and it’s one that could easily distract at the L&B.

That then brings the question of volunteers, members, and their influence. We do not run our railways. We accept that managers and trustees have that responsibility. But it’s on a condition - that being that they are accountable to us. Not in a formal sense of getting a rubber stamp at an AGM, but in engaging with us to share their vision and gain our input and feedback as their plans evolve and form.

The model I was so critical of in my post yesterday was the one that caused me to resign from NYMR membership, and which in (less benign form) I am fighting at the L&B. It nods to members and (especially) volunteers, but actually treats us as an inconvenience. It treats us as inferior, little children who need to do as we’re told.

When an organisation has issues, as at the L&B, it undermines the compact between members and trustees. The motion to remove Peter Miles may or may not be a good idea. But if members feel strongly enough to propose such a motion, they’re entitled to proper engagement rather than the silent treatment and an attempt to say that company law is only to be deployed for the benefit of office holders.

But more generally it undermines the nature of the organisation by saying their opinions are of lesser value. If our views don’t accord, our voices are not to be heard. If we advocate for things we value, we get told that charitable purposes mean our voices can’t be factored in because charities can’t operate for the benefit of their members. This to people who have given decades to their chosen railways, and without whose input they would not exist today. At the very least, that fails to recognise the accumulated energy and experience those voices can contribute, and the value it can represent.

These are complex systems in which relationships matter. A “good” GM at one railway lost a material part of the support base; a different person appears by their style and engagement to have quite quickly recovered much of that ground.

It’s examples like these that make me reject the managerialism model. Not because it has nothing to offer (it contains valuable insights) but because it is ultimately insufficient for enthusiasm based organisations such as heritage railways.


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^^ This - ten times over.

Tom

 

I'm not sure, but when I was looking it up, I found a number of lawyers notes on the updates to the Companies Act 2006 made in 2011 - one example can be found at https://www.russell-cooke.co.uk/media/yveper1a/a-clients-guide-to-company-meetings-april-2011.pdf though there are others around.

In that document, one section specifically relates to the new electronic means of communication regarding notice, and I copy it below for reference:

2.3.4 Method of notice
(a) As well as notices being given to shareholders in person or by post, the Act has introduced provisions to make it easier for companies to circulate notices to shareholders by electronic means, including fax, email, or by posting on a website.
(b) If it is intended to use electronic means of circulation, it is important to ensure that the rules under the Act relating to this are followed. Even if the Articles permit the use of electronic means of circulation, this does not in itself mean that a company can circulate notices of General Meeting electronically. Key points to bear in mind include:
(i) Notice can be given by email, fax, posting a CD or similar electronic means only if the shareholder has explicitly agreed to receive notice (of this particular meeting, or all general meetings) by this method.
(ii) Notice can be given via a website only if this is allowed under the Articles or by a resolution of the shareholders, and the particular shareholder in question has either explicitly agreed to receive notice by this method or can be treated as having given their deemed consent in accordance with the relevant rules in the Act.
(iii) If the company does put notice of a General Meeting on a website, this must be notified to each shareholder who has agreed (or is deemed to have agreed in accordance with the Act) to receive notice via the website. The Act again sets out rules as to the form of this notification and how it can be sent to a shareholder.
(iv) When a shareholder has received notice electronically or via a website they can still request a hard copy, and this must be provided free of charge.

This seems to be supported by Schedule 5, Part 4 of the Companies act, and thus the notice posted on the Trust Notices part of the website on February 19th is not, in truth, actually deemed notice, as I do not believe that there a) is provision in the articles for website notice; b) has been a resolution to support website notice; c) all members have given consent to receive notice by website (this one hasn't) and d) notification of the notice on the website has been given in the format prescribed (or at all in my case)

That being the case I don't think that notice of the meeting has been given yet, formally. I realise that, as yet, nobody has suggested it has been, but I fear that a response to the motion raised by Messrs. Lane and Ball will be to suggest that the motion is invalid by dint of the meeting being formally called on February 19th.

John

 

I've just had a quick delve into the points you raise, notice there are many interpretations and opinions by differing legal sites, eg one expands on the section 309 and says it can be by hard copy as per CA(5)(4), or email (if the member has agreed to be contacted by that format, presumably GDPR related) or by notice on a website, another just regurgitates section 309 as is.....

This is beginning to shout to me that it needs as much research and time as planning law needs to figure it all out with conflicting views and opinions, time I don't have to be honest as too much else to do! Hehe

Why do things have to be so complex and at times so vague... Got to give those lawyers something to do I guess

 

I think we can all agree that everyone needs to follow the law of the land, don't you?[/QUOTE]

As you would expect I agree.

Despite your confident assertions that refusal to put the motion to dismiss the chairman on the AGM agenda would be a breach of the law I don't share that view. As you noted its correct interpretation may well involve the parties taking legal advice which, if they are expected to follow the law of the land as it is rather than as they think it should be, is probably unavoidable.

For the notice served to be effective the motion has to be on the AGM agenda. Is there a legal right for any member to require that a duly proposed and seconded motion is placed on the agenda? My understanding is that the strict answer is No where the meeting is being called by the directors. However, I very much share 35B's views in his most recent thoughtful post that concentrating on the need for members and volunteers in particular to feel their interests and concerns are being taken seriously should take precedence over rigid adherence to the law. So it would be sensible to allow motions to be added but it is by choice of the directors in the interests of open and inclusive governance rather than as a result of the exercise of any rights.
Paradoxically the more those behind the motion bang on about the law and demand that the motion is tabled the more likely it seems to me that that the response will be refusal. We'll see whose interpretation of the law is correct but if mine is right then the strident campaign to olust the chairman may prove to be a tactical error.

What options are open to members to insist that such motions are put before a General Meeting? The answer is the section 303 procedure if they can achieve the 5% of members threshold and in some cases pay the cost of the meeting in advance. Does that mean the law is weighted in favour of the incumbent directors? Absolutely!........ but that is apparently the law that should be followed?

Personally put me in 35B's camp of allowing sensible and constructive member resolutions at an AGM even if there is no legal requirement to do so.

 

And rolled asphalt and tarmacadam didn't come to North Devon until the nineteen twenties. (Quote from 'British Roads past and present' : Devon). I believe the Lynmouth-Minehead road wasn't tackled until the 30s. Prior to that there had only been tar spraying, done to lay the dust which was the bugbear when motorised vehicles came in.