The limits of entrepreneurial “Powa” – identifying lines in the sand which start-up founders can’t cross

25/06/24

Wagner v Bright Station Ventures Management Limited concerned claims and counterclaims arising out of intra-group company debt, and funds channelled through a ‘service company’ for the group (the defendant, BSVM). Mr Wagner is a well-known technology entrepreneur, whose ventures included Powa Technologies, a fintech business whose principal product ‘PowaTag’ was a form of mobile payment technology. Powa was a subsidiary of Bright Station Ventures Limited (“BSVL”), which was also the parent of BSVM. Mr Wagner contended that BSVM was a service company for the Bright Station group of companies. Powa went into administration in 2016 which prompted litigation in various fora. 

The key issues in dispute concerned: 

(i)                  whether monies advanced by Mr Wagner to BSVM for it to in settle invoices in respect of litigation concerning inter alia Powa disputes (including the management of the BSV group) were recoverable from BSVM insofar as they were sums advanced for the benefit of BSVM (or for which it should be liable as a service company for the group); and

(ii)                whether various other monies paid out by BSVM to the order of Mr Wagner were recoverable by BSVM insofar as they were not for its benefit and were procured by Mr Wagner in breach of his duties to that company.

In respect of the first issue, the Judge held that the vast majority of the litigation was broadly for the benefit of Mr Wagner personally (including in respect of his disputes with the BSVL board) and therefore not a group liability which BSVM as a notional service company should assume. In respect of the second issue, whilst there was a lack of formality in the books and records of BSVM, ultimately Mr Wagner was entitled to the various payments which he procured; particularly given he had a retained an honest book-keeper to assist in the payment processes. 

The judgment is demonstrative of the sometimes fine line in assessing the beneficiaries of transactions involving companies formed as part of entrepreneurial structures where interests may not meet. In this case, Mr Wagner ended up at odds with the other ultimate shareholders in the BSV group; and the Court was bound to intervene. It is trite law that the assets of the company are distinct from the assets of the businesspeople sitting behind them, but, as Lord Sumption famously remarked of the businessman in Swynson v Lowick Rose [2017] UKSC 32 at [1], he was not the first to fail to recognise the distinction, and “[…] doubtless will not be the last.” So this case shows.

The judgment is here.