|24 January 2022|
|“…………..Mr Fletcher is plainly committed to looking after the interests of the members of the club, with honesty and integrity”|
Lord Clark, Scottish Court of Session, 20th January 2022
|Los Claveles owners who have read Mr Fletcher’s minutes of the recent DOA SGM may recall him mentioning the disrespectful way that some owners who attended the meeting chose to ask questions of him. These are some of the same owners who replied disrespectfully to Mr Fletcher’s recent communication about the SGM saying:|
|“I have no interest in what you have to say”, “I totally reject the crap you continue to issue”, “Now just get lost”|
“You are a total loser”.
|It’s disgraceful behaviour. Now this has continued with the remarks that Mr Lear, as purported representative of Escritura owners, has published on Mr Barrow’s Los Claveles DOA website on 16th January 2022. He is accusing Mr Fletcher of all sorts of unsubstantiated misdeeds. Note: Mr Lear is described as being the purported representative because the meeting at which he was elected, the DOA AGM of 28th November 2021, is in the process of being impugned for all the procedural irregularities that took place.|
Like Mr Barrow, Mr Lear receives his information from Onagrup, which makes a mockery of the independence that their roles were designed to have. An example of this is Mr Lear’s reference to Club Los Claveles Limited, a company set up to collect the Club’s income from maintenance fees in the UK where the Club and its members would have direct control over expenditure, rather than though a second party in Spain, e.g. Wimpen Onagrup. Given the trouble the Club has had trying to get its funds back from Wimpen Onagrup, following the first arbitration, the importance of the Club having control of its funds in the UK could not be made any clearer. Mr Lear describes this company as Mr Fletcher’s company, i.e. “his company”. This is complete nonsense. The company has a board of Directors consisting of Club officials, including Mr Fletcher, which is perfectly normal and will change naturally over time. To suggest otherwise is quite simply malicious on Mr Lear’s part. This company was set up after receiving legal advice following the Club members vote to ratify the termination of Wimpen Onagrup’s contract at the 2015 joint AGM. It has served the purpose for which it was designed since 2017 when Wimpen Onagrup’s contract with the Club expired, and members approved the appointment of Hiro Bulchand as Club Administrator to replace Wimpen Onagrup.
Onagrup’s lawyer submitted a statement to the injunction hearing that took place on 7 January 2022 questioning the legal right of Club Los Claveles Ltd. to raise a challenge to the DOA SGM taking place. He did so on the basis of no knowledge whatsoever about the company’s membership of the Club which gave it the legal title to apply for the injunction. The hearing would not have gone ahead if the company did not have legal title to do so. The evidence that was presented to the judge was that the DOA SGM resolutions amounted to an illegal ‘power grab’ by Wimpen Onagrup to take control of the resort by removing control from the Club as an independent community. This is borne out by the advice received from the Club’s legal advisors in Scotland with respect to the Scots law Club Constitution, and in Spain with respect to the Spanish Statutes of the DOA.
Owners will be aware that this meeting was called with minimum notice, less than 10 days before Christmas. This meeting was not an emergency but that’s how Wimpen Onagrup treated it, and it was called at a time when the infection rate in the UK from the Omicron virus was rising steeply. On the surface, it made no sense whatsoever but below the surface was the hidden reason why this meeting was called so close to Christmas. It was to make it as difficult as possible for the Club and its members to do anything to stop it.
Wimpen Onagrup was confident that it had secured a majority of votes for this meeting. In the main this was because of its own 450+ Club and Escritura votes; the votes of those of companies that it had transferred the Club’s 1200 cancelled weeks to without the requisite authority; and the intensive phone and email vote-gathering campaigns it had mounted with owners in March 2021, and again in October 2021. With this confidence, Wimpen Onagrup initiated its plan to hold an AGM at the end of November 2021. This was designed to bring to an end the longstanding community voting arrangements at Los Claveles which are in accordance with the Law of Horizontal Property. Wimpen Onagrup saw the opportunity to break the Club’s resistance and gain a 2/3rds majority with this manoeuvre. Of course, Wimpen Onagrup did not disclose this when it called the DOA AGM. In one swift move they gave up years of legal action to deny Club members their voting rights at DOA AGMs and suddenly acquiesced to this, under the pretence that this was being done to regularise the unitary arrangements at the resort that it misleadingly claimed had existed for years. This is completely untrue. Each community has its own separate identity and legal framework. Wimpen Onagrup’s actions are solely to take control of the resort, and to shape it to its own agenda through its constantly increasing direct ownership and through the indirect ownership of 7 associated companies, none of which responded to requests to verify their ownership, and many of which have been shown to be highly questionable by independent research that was recently shared with owners.
From the Club’s perspective, it was incredibly challenging to obtain legal advice to fight this power grab by Wimpen Onagrup in such a short timescale. This had to be done in three countries since the meeting was taking place in England, the Club’s Constitution was under Scots law, and the DOA’s Statutes under Spanish law. It was a very tall order to secure the services of a barrister at very short notice, then to prepare a detailed application for an injunction, and for the High Court to appoint a judge and schedule court time for the hearing, bearing in the mind the Christmas and New Year holidays.
At the injunction hearing which took place at the judge’s direction only 2 days before the date of the DOA SGM it was clear that the judge was heavily influenced by the inconvenience it would cause to owners travelling to attend the meeting, especially those from abroad, if the injunction were to be granted and the meeting called off. He was also heavily influenced by the primacy of the 1992 Spanish Statutes despite no owner ever having seen these, and the English language version “apparently” being erroneously translated by Wimpen and issued to members since 1989. “Apparently” erroneous because a copy of the original Spanish Statutes dated prior to 1992 was not made available, and therefore there was no way of checking what these Spanish statutes said. For all we know the 1989 English translation of the original statutes could be accurate.
Both of these influences on the judge were controversial to say the least. However, the core issue presented to him was the attempted ‘power grab’ by Wimpen Onagrup. The judge was reluctant to award the injunction because this would have amounted to a “summary judgement” that would prevent Wimpen Onagrup from being able to revisit the matter in law in the future. He felt this would have been unfair, and that by refusing the injunction he was leaving the opportunity open for the Club to challenge the SGM resolutions in the future. Owners will no doubt have their own view of whether this was just cause to allow an obvious injustice – the attempted ‘power grab’ – to go ahead. In the meantime, the Club’s Spanish lawyer has lodged a challenge to the legality of the resolutions that make up the ‘power grab’ in the Spanish Court and further information about this action will be shared with owners in due course.
Returning to Mr Lear, and the accusations he has made about Mr Fletcher. Mr Lear accuses Mr Fletcher of saying that he is right, and the arbitrator and judges are wrong. Like everyone else, Mr Fletcher is entitled to have his own opinion, however, the important point is that the Club Committee has taken legal advice at all times in this protracted dispute with Wimpen Onagrup. The legal action that has been taken has been solely based on this advice. The legal challenges that have been made have all had considerable substance, and there remains very divided views about the outcomes, not only by the parties but also by their legal advisors, which is not uncommon. For Mr Lear to characterise this as Mr Fletcher always knowing best is a gross misrepresentation. However, the personal disrespect shown by Mr Lear to Mr Fletcher in this matter is clear for everyone to see. It is to his discredit and is quite unnecessary and unjustified.
Mr Lear’s judgemental attitude again comes to fore in his remarks about the Club’s legal action to deliver its members’ democratic will. Mr Lear, and the owners who support his view of the Club’s situation, have consistently been at odds with the majority of the Club’s members. It is only through his allegiance with Mr Barrow and Onagrup, with the resources they have at their disposal, that he has been able to influence the growth of owners supporting Wimpen Onagrup. An example of the disproportionate resources that Wimpen Onagrup has at its disposal, is the £523k that it spent on an arbitration that was a third of the duration of the first one, but cost over three times more, and was ten times that of the Club’s legal costs. They threw everything at it, money no object, and yet Mr Lear and his followers criticise Mr Fletcher for delivering Club members’ democratic will in a careful and judicious way, so that they have the right to chose how they want their resort to be developed, not how Wimpen Onagrup wants it, in order to serve its commercial interests.
Mr Lear describes how a number of challenges were made to Mr Fletcher by owners attending the DOA SGM who support Wimpen Onagrup’s resolutions. It is enlightening to learn about this as it is not the usual way that Mr Barrow has run previous DOA meetings that he has chaired. At those meetings Mr Barrow has quickly closed down any, and all, challenges that owners have raised. Yet at this meeting it was ‘open season’ as far as challenging Mr Fletcher was concerned.
Mr Lear goes on to raise an issue about the Club Committee not holding an SGM that was requested by more than 10% of Club members in March 2021. The facts of the matter are that WimPen Onagrup asked the Club Committee to call an SGM on the basis of the list of members calling for this that they, Wimpen Onagrup, organised. The Committee response was that, in order to call an SGM, they would need a copy of the Register of Members to be handed to them from WimPen Onagrup (as Mr Malone had ordered in the first arbitration).
The Committee would need this to:
(i) verify that the people who had requested the meeting were valid Club Members.
(ii) ensure that all members were invited
(iii) validate the votes cast.
WimPen refused to give a copy of the Register of Members without there first being a court order, despite their own lawyer giving evidence to the first arbitration that it was legally permissible to do so for the purpose of calling a general meeting.
In addition, the resolution that had been submitted called for independent chairmanship of the SGM. There is no provision for this in the Club Constitution which is specific about general meetings being chaired by the Club Chairman .
The request for the SGM was organised, and votes were canvassed, by Wimpen Onagrup as an ordinary Club member. Wimpen Onagrup ceased to be the Club’s Administrator in 2017, yet they continued to use the Club’s Register of Members, in breach of data protection rules. Wimpen Onagrup then enlisted FNTC to verify the list, again as an ordinary member of the Club, and FNTC cooperated with them. This was a further breach of data protection.
Finally, the Register of Members that FNTC used to ‘verify’ ownership was supplied by Wimpen Onagrup, so it is hardly surprising that FNTC confirmed what Wimpen Onagrup had told them. Clearly this was insufficient, especially in relation to the purported owners of the Club’s 1200 cancelled where there has been a complete lack of evidence of proof of purchase, payment of maintenance fees, and ratification of membership at an AGM, as required by the Club Constitution.
Turning to the huge support claimed by Mr Lear from individual owners voting in favour of the resolutions, it is patently obvious that this is the direct result of:
i) Wimpen Onagrup’s sustained phone and email campaigns, using the Club’s register of members, in breach of data protection rules.
ii) Mr Barrow’s discriminatory behaviour of excluding anyone from his DOA Facebook group who does not support Wimpen Onagrup.
iii) The 1200 votes associated with the Club’s cancelled weeks that Wimpen Onagrup purloined and transferred to 7 associated companies without the necessary constitutional authority.
It is worth noting that the actual votes cast for the resolutions by individual owners (excluding Wimpen’s weeks which were cancelled in 2021 and the purloined 1200 cancelled Club weeks) was apparently less than the votes cast by individual owners who are opposed to Wimpen Onagrup. Yet again, another a case of ‘smoke and mirrors’ that falls apart when it is stripped back to reveal the truth.
Mr Lear challenges the traditional arrangement at Los Claveles known as ‘block votes’. This has been in operation for a long number of years and is where the Club and the Escritura communities decide on resolutions to be decided at DOA AGMs before the DOA meetings take place. A representative of each of these two communities is then authorised to place the community’s votes at the DOA AGM. Once again, Mr Lear has a different view of how the voting arrangements should be handled, and inevitably it’s the same as Wimpen Onagrup’s view, which is significantly less democratic than the existing arrangement. Unsurprisingly, this is precisely the argument that Wimpen Onagrup used when they refused to accept the Club members’ majority vote to terminate its contract in 2015. Wimpen Onagrup insisted that Escritura votes had to be combined with Club votes which would give them a majority to remain as Club Administrator, regardless of the Club Constitution and the Law of Horizontal Property. This should tell owners all they need to know about Wimpen Onagrup and how it operates.
Finally, we get to Mr Lear’s interpretations of the implications of the meeting.
* Mr Lear states that the DOA is obliged to maintain a database of owners. Perhaps he could explain how Wimpen Onagrup obtained the member data for the DOA database in the first place, and how it has been able to maintain this database when its contract with the Club ended in May 2017? (Under data protection rules Wimpen Onagrup would require to have authority from the Club to use its Register of Members to create the DOA database, and a management contract to maintain it.)
* Mr Lear questions where the Club committee got the information to create a database of members when Wimpen Onagrup refused to accept the termination of its contract and return the Register of Members. Also, how permission from owners was obtained to include them in the database. The answer is, with a great deal of on-site and off-site contact with members, in accordance with the constitutional requirement to maintain a Register of Members, and with the permission of the contractual agreement that members enter into with the Club when they become members to supply their name, contact and villa/week details.
* Mr Lear states that Wimpen will not refurbish the villas without approval from owners. However, Wimpen Onagrup and their associated companies make up the majority of Club members who vote, so the refurbishment will effectively be decided by Wimpen Onagrup unless the Club can recover the 1200 cancelled weeks that Wimpen Onagrup transferred, without permission, to its associated companies.
* Mr Lear states that a 2/3rds majority is required to change the DOA Statutes. However, the Law of Horizontal Property states that any vote to change the statutes of a community has to be unanimous, and the bye laws of a community cannot diminish, or reduce, the LoHP standards.
* Mr Lear states that the November 2021 DOA AGM has not been impugned. For his information, the timescale for impugning the meeting has not expired and the meeting is in the process of being impugned. And, for the record, both the 2018 and 2019 DOA AGMs have been impugned. The court hearing for the former took place in Tenerife on 1st December 2021. The result is expected by the end of next month.
* Mr Lear states that the first arbitration is unenforceable until ruled upon by the provincial court in Arona. He omits to mention that the execution of the first arbitration award has been blocked by a court order obtained in November 2016 by Wimpen employee and owner Ms Jane Oliphant who somehow learned of the first arbitrator’s provisional award of €125k to the Club, in breach of arbitration rules. This court order was appealed and eventually overturned 4 years later. The court ordered written submissions to be made on 30th November 2021 and a court ruling is expected by the end of February 2022. If this is in favour of the Club then the enforcement of the first arbitration award by the court in Arona will be pursued by the Club’s Spanish lawyer.
* Mr Lear states that Club owners were invited to vote so have been fully consulted on the changes to the DOA statutes. However, Club owners were not told the truth about the real reason for Wimpen Onagrup holding an AGM at minimum notice, on a date that is not in the statutory close-down period, and then following this up with an SGM that was not an emergency, and again hiding the true reason for holding the meeting from Club members. Fully consulted? Not by a long stretch. Fully concealed, more like.
* Mr Lear makes no mention of Mr Barrow’s ‘about turn’ by allowing votes from owners who were not up to date with their maintenance fees and had not paid their fees into the community fund. His letter to owners about the meeting clearly stated that their votes would not count if they were in this category, and this influenced many of them not to vote. Perhaps Mr Lear could explain where in the Club Constitution it states that fees are to be paid into the community account? And why Wimpen Onagrup has breached the DOA Statutes by not complying with the requirement to calculate, seek owner approval for, and collect, the common parts’ service charge?
Perhaps he could also allay owners’ suspicions that this concession was made by Mr Barrow because Wimpen Onagrup’s associated companies have never paid any fees to the community fund, and that that is the true reason why this concession was made? These suspicions can be laid to rest by WimPen Onagrup producing evidence of payment of fees by these companies, and of power of attorney for their proxy votes.
Dot & Ray Steele
V31/W4, V17/W5-8, V50/W9, V31/W45-46, V50/W47-48
Attendees at the DOA SGM, 9th January 2022
Ray is a Director of Club Los Claveles Limited