![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Chancery Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tinkler & Anor v Invesco Asset Management Ltd & Ors [2025] EWHC 1624 (Ch) (27 June 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/1624.html Cite as: [2025] EWHC 1624 (Ch) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
![]() ![]() |
||
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
B e f o r e :
____________________
(1) WILLIAM ANDREW TINKLER (2) STOBART CAPITAL LIMITED |
Claimants |
|
- and – |
||
(10) INVESCO ASSET MANAGEMENT LIMITED (12) FREDERICK BOUVERAT (16) ORBITUS TRUSTEES (GUERNSEY) LIMITED (19) STIFEL NICOLAUS EUROPE LIMITED |
Defendants |
____________________
MR CLEON CATSAMBIS (instructed by Baker & McKenzie LLP) appeared on behalf of the Sixteenth Defendant.
MR ANDREAS GLEDHILL KC and MR TIMOTHY LAU (instructed by Ashurst LLP) appeared on behalf of the Nineteenth Defendant.
MR JONATHAN D KING (instructed by Direct Access) appeared on behalf of the Claimant.
Hearing dates: 10, 11 and 12 June 2025
____________________
Crown Copyright ©
Mr Justice Leech:
I. The Applications
II. Procedural History
(1) The Defamation Claim
(2) The 2018 Claim
(3) The Guernsey Applications
(4) The ET Claim
"The Applicant do have permission to use and rely upon the Disclosed Documents for the purposes of: (i) an intended claim against Stobart Group Ltd ("Stobart Group") to set aside the Judgment of HHJ Russen QC in proceedings brought by Stobart Group against the Applicant in the London CircuitCommercial
Court under case number LM-2018-000113 ("the 2018 Proceedings"), including but not limited to any applications for interim relief in support of or in anticipation of those proceedings ("the First Proposed Claim"); and (ii) an intended claim against Stobart Group, Mr Warwick Brady ("Mr Brady"), Mr Iain Ferguson CBE ("Mr Ferguson") and the Respondent in connection with the 2018 Proceedings and the Applicant's dismissal as an employee of Stobart Group and removal as a director, including but not limited to any applications for interim relief in support of or in anticipation of those proceedings ("the Second Proposed Claim")."
"Prior to the Fraud Claim and Conspiracy Claim, Mr Tinkler sought an order against Mr Soanes (on a without notice basis) for permission for documents disclosed in other proceedings to be used in support of these new claims. Mr Tinkler's counsel's note reads: "[Mr Tinkler] seeks permission for 3 purposes ... Prospective permission to bring a claim in unlawful means conspiracy against the Claimants in the 2018 Proceedings — Mr Brady, Mr Ferguson and the Respondent, Mr Soanes, - in connection with matters arising out of the 2018 Proceedings. This claim necessarily requires the judgment to be set aside. If it is not, the conspiracy claim can go nowhere." Mr Justice Birss (as he then was) adjourned the hearing due to a lack of evidence and allowed Mr Tinkler to return with full evidence.
The restored hearing of the application took place before Deputy Judge Mark Anderson KC. As set out in Clyde & Co LLP's note, Mr Tinkler's counsel said: "The Conspiracy Claim cannot be pursued until the Judgment Claim has been fought and won. Mr Tinkler will therefore seek to have that claim stayed pending outcome of the Judgment Claim." The Court made the order sought."
(5) The Esken Payment Claim
(6) The Soanes Claim
(7) The Fraud Claim
(8) The Conspiracy Claim
(9) The Present Claim
(i) Pre-action correspondence
"During the review, material emails that should have been disclosed by Invesco under my Data Subject Access Request were found. I specifically refer to but not limited, emails between Matt Brazier and Stobart Group Directors. Frederick Bouverat and the Stobart Group Directors. In order to assist I understand that since 2017 Matt Brazier has been employed by Invesco as a Capital Structure Analyst. It is therefore somewhat surprising
and concerning that he was agreeing wording on behalf of Invesco in respect of RNS releases that were being made by the Stobart Group Board. In respect of Frederick Bouverat and in order to assist your investigation, I invite you to consider the language used in emails and also his involvement in the outcome of the Companies AGM. I am also now aware that Mr Bouverat was instrumental in providing Land Registry searches and offering services of Invesco's solicitors Messrs Jones Day to Stobart Group in order to make wholly unfounded allegations to the Take Over Panel that I was acting as a concert party with Neil Woodford and others.
In short, and in order to make my position clear, both the above employees of Invesco along with Mark Barnett stepped into the arena of the boardroom in working with the directors to secure my removal and may have conspired to damage my reputation in the public domain and also with the FCA and Takeover Panel in making unfounded and damaging allegations."
"Messrs Clyde and Co who act on my behalf have now written to Messrs Rosenblatt (Esken formally Stobart Group's legal advisers) in respect of both the Fraud and Conspiracy claim's that have been issued and served, in order to seek permission to use the documents that were disclosed in the 2018 Proceedings that relate to Invesco. It is now even clearer since I last corresponded, the level of involvement of Mark Barnett, Frederick Bouverat and Matt Brazier in not only 29 May 2018 RNS but also the Company's AGM.
Dependent upon the response received from Messrs Rosenblatt's, it will be at that point that either a formal application is made to the High Court, or the Letter Before Action is prepared and issued to Invesco with the documents.
I have been in business for many years and thought it only right that I draw to your attention to these advanced proceedings, before a Letter Before Action is issued, and following further discovery of Invesco's involvement.
I wish to draw to your attention to the history and performance of Invesco's
investment in Stobart Group (now Esken) following the Board involvement of Mr Bouverat, Mr Barnett and Mr Brazier during the period May to July 2018 onwards.
1) Mr Tinklers Involvement in the company 1 September 2017 onwards:
2) Involvement of Invesco in respect of RNS announcements by Stobart Group 25 and 29 May 18 onwards:
3) Invesco's involvement in the instruction of Messrs Jones Day to act on behalf of the Board in June 2018 regarding the Takeover Panel. The representations made in order to persuade the Takeover Panel of a concert party or board control seeking position.
4) Correspondence in respect of the voting before the AGM on the 6 July 2018 and following the AGM."
"87. The current position. A Conspiracy Claim has been issued in the High Court, in respect of Warwick Brady and Iain Ferguson. That claim is currently stayed by consent and is due before the High Court on 1 March 2024. It is intended to make a "Joinder Application" in which the Court will be invited to join the executives and [IAML] to those proceedings.
88. Furthermore, the Claimant intends to make an application for permission of the Court, to use the material referred to above, and other material, the Claimant is now in possession.
89. The Claimant is confident that there is no defence to the allegations, including the failures to date of [IAML] as set out. In compliance with CPR, the Claimant is prepared to engage in ADR in order to settle this matter."
(ii) The Panel investigation
"What I am doing separately is creating an index of all documents relevant to the points that have been made in my letters of 24 July and 10 August and providing a narrative to explain each document and the context that it has in the current submissions with respect to Stobart Group's alleged breaches. As and when each of these are completed, I will forward to you for review.
Please note that these indexes and the details of the documents referred to are being provided to you on an understanding that, given the restriction in CPR 31.22, no direct action or reliance will be taken by the Panel on the basis of the index alone. They are being provided to enable the Panel to gain a full understanding of what happened to support their investigation and then, should formal action be taken, we can then apply to the court or Stobart Group Limited, for their consent to the use of the full documents, at which point we will then provide these to you. This is assuming that the Panel has not suggested an alternative route following conclusion of their current review of this point. In light of case law on this point, specifically MarlwoodCommercial
Inc v Kozeny [2004] EWCA Civ 798, I am confident that consent would be provided by the court in this instance as the public interest factor, coupled with these documents being requested by a regulatory authority, will outweigh any objections that the other side may submit.
I will continue to identify the relevant documents and will produce indexes accordingly to the other breaches I have set out in my submissions on the 24 July and 10 August 2023 on Stobartcommitting
frustrating actions when they were aware that an offer may be imminent, in breach of Rule 21 of the Code, these actions being transferring shares out of treasury and entering in to contracts outside of the ordinary course of the business; and purchasing of shares by members suspected of acting in concert in breach of Rule 9.1 of the Code."
"By extracting these documents relevant to the Panel from the wider disclosure documents it also becomes more clear that the submission made to the Panel regards a suspected concert party between myself and others was based on no genuine concern or evidence. Invesco considered that a Panel submission with the goal to ultimately restrict myself and other dissenting shareholders from purchasing more shares to vote at the AGM, was one tactic in their wider campaign. Reviewing the documents chronologically, it is clear that the decision to make a submission to the Panel is made by Invesco and certain of the Stobart directors, and then they subsequently seek to find evidence or grounds on which to make that submission.
Within the index I have highlighted in green those documents that were referred to in court and can be disclosed, and the documents highlighted red were documents not referred to and would require consent of Stobart Group or the court to be disclosed in full (please refer to the understanding in the body of the letter with which I am disclosing the document detail and overview).
The narrative against each document sets out its context and relevant point for this purpose as well as an extract of the text from the document demonstrating the point."
"4. Following the consultation regarding the proposed changes to Rule 21 of the Code on frustrating actions in July 2023, and the implementation of those changes on 11 December 2023, I revisited the additional materials I obtained in 2022. This allowed me to gain a fuller understanding of the events in this case. Based on this review, I submitted observations to the Panel in July 2023 and further submissions since that date up to December 2023, highlighting the potential risks of relaxing these rules, drawing from my experience. I acknowledge that this is a lengthy and detailed document, which was necessary to comply with Section 9(a) of the Introduction to the Code. It has also been necessary for me to reference numerous documents to support my position. Despite Mr. Evans stating during the interview that 'we have our own evidence,' none of that evidence was shared with me, leaving it unclear what evidence, if any, the Panel Executives had been reviewing other than what I was able to share with them.
5. During the recorded interview on 12 November 2024, it became apparent from the transcript that the focus of the Panel Executives seemed limited in scope, which did not allow for a full exploration of my concerns. I also note that Mrs. Shah was unable to remain for the entire interview, and Mr. Evans and Mr. Crawshay did not elaborate on the evidence they referenced. Given these circumstances, I believe it is inappropriate for the same Panel Executives who made the decision on 28 June 2018 to now be involved in investigating this matter. This raises concerns about impartiality, which I hope will be addressed through referrals to the HearingCommittee
and the FCA."
(ii) The Claim Form
(iii) The Particulars of Claim
III. The Particulars of Claim
(1) Summary
"1. C1 and C2 claim declaratory relief relating to, and an award of damages sustained by C1 and C2 in consequence of, unlawful means conspiracy which 1.1. had as its objects the removal of the First Claimant C1 as director of the company now known as Esken Limited ("the Company") and the tarnishing of the First Claimant's reputation, and the concealment of the steps taken to achieve the same. 1.2. in fact brought about the frustration and /or termination of the contractual relationship as between the Second Claimant C2 and the Company. 1.3. infringed the rights of C1 as shareholder of and in the Company."
(2) The Facts
"The Control Conspiracy
Control Conspiracy and Control Objectives
21. At a meeting on 1st May 2018 C1 informed the Company's chairman (Mr Ferguson, the "Chairman") that he had lost confidence in the Chairman's ability to drive the previous agreed strategy approved by shareholders in June 2017, and C1 confirmed that he would be voting against the re-election of the Chairman, and invited him to stand down at the next AGM.
22. From the facts and matters set out below, it is properly to be inferred that:
22.1. From 1st May 2018 onwards, Messrs Ferguson, Brady, Coombs and Wood as directors of the Company ("the Four Directors") conspired to take a series of steps, with thecommon
aims of securing the removal of C1 from the Board and maintaining or securing their own positions within the Company for their own financial gain (collectively, the "Control Objectives").
22.2. From around 7th May 2018, the Four Directors set-up a campaign called Project Shelley, to undermine C1 as a director and to secure the re-election of Mr Ferguson ("Chairman") and cause damage to C1 and C2, with the intention of discrediting C1 and persuading shareholders to support the re-election of the Chairman. An aggressive PR campaign was instigated to deliver the Control Objectives as set out.
22.3. From around 8th May 2018 D19, and D20 came to assist the Four Directors in their pursuit of the Control Objectives, thereby joining the conspiracy to do so.
22.4. From around 16th May 2018 D10, D11 and D12 came to assist the Four Directors in their pursuit of the Control Objectives, thereby joining the conspiracy to do so.
22.5. From around 11th June 2018 D16, D17 and D18 came to assist the Four Directors in their pursuit of the Control Objectives, thereby joining the conspiracy to do so.
23. Each of Ds 10-12 and Ds 16-20 (collectively "the Participants") took steps which were intended to bring about the Control Objectives or to assist others in so doing, as further particularised below.
24. In seeking to achieve the Control Objectives, the Participants used means which were unlawful and/or improper (as particularised below) and acted so as intentionally to tarnish and/or undermine the reputation, and standing of C1. In order to facilitate or achieve this, the directors admitted they would take all possible avenues with the intention of 'winning' the AGM by having Mr Ferguson re-elected, being what D10, as the largest shareholder wanted.
25. Further, in seeking to achieve the Control Objectives, the Participants acted in a manner which it was foreseeable would have, and in fact did have, the effect of infringing the shareholder rights of C1, which was an abuse of power, and which offends the constitutional distribution of powers between the different organs of the Company.
26. It was, in turn, intended that C1 would suffer harm in consequence, and further or in any event foreseeable that he would do so, including by virtue of the envisaged loss of his shareholder value as well as position as executive director and in respect of his standing and reputation.
27. It was intended or in any event foreseeable that, upon the removal of C1, the C2 Management Agreement would be terminated, in circumstances in which C2 was controlled by C1, who remained as majority shareholder in and of the same."
"Conduct prior to 2018 AGM
28. On or around 8th May 2018, the Four Directors agreed to mount a campaign known as Project Shelley in order to pursue, and with the express intention of pursuing, the Control Objectives. The Four Directors subsequently caused or permitted the Company to spend a sum which C1 and C2 understand to be in the region of £3m in doing so.
29. In order to achieve the removal of C1 as executive director and to secure the re-election of Mr Ferguson as Chairman of the Company, the Four Directors began to investigate how they might seek to control and manipulate the pattern of voting at the forthcoming AGM scheduled for 6th July 2018 in order to achieve the Control Objectives.
30. Between 17th and 23rd May 2018, the Four Directors met with D10 and D11 following a script and presentation with, it is to be inferred, the express intention of procuring the assistance of D10-D12 with the pursuit of the Control Objectives.
31. On 24 May 2018, the Four Directors, D19 and D20 realised that over 7 million non-votable shares were held by the Company in treasury, which had a Company capital value of around £18 million, and discussed whether these could be transferred to the EBT so they could be voted in favour of the re-election of the Chairman.
32. Notwithstanding receipt of legal advice that D16-D18 had an overriding fiduciary obligation to act in the interest of the EBT beneficiaries (of which C1 was one such beneficiary), and that such a transfer on terms requiring D16 to vote the shares in favour of the Chairman would create a conflict, and that the voting of such shares required the approval of the Chairman only, to permit the shares to be voted by the EBT, the Four Directors, acting in pursuit of the Control Objectives and with the assistance of D16-D20 executed the transfer.
33. The Four Directors enlisted the assistance of D16, D17 and D18 and that of D19 and D20 to permit the transfer of the shares and enter into an agreement with the EBT to vote the shares as directed by the directors of theCommittee,
who did not possess the authority to make such a recommendation, which also required full board approval to permit such a transfer to take place.
34. D16, as trustees of EBT would be well aware and should have highlighted the fact that the necessary authority was required from the Company Chairman, as set out within the Trust Deed. Despite never receiving such recommendation, the EBT went onto vote the shares as directed.
35. On 11th June 2018, the Company received confirmation from D16 that they would accept the transfer of all Treasury Shares and vote in favour of the recommendation of the Chairman, despite no such recommendation ever being received.
36. The primary purpose in doing so was for the Participants to secure control of an extra 2.7% voting rights at the AGM. This was an Ultra Vires act done for improper purpose and in breach of the Four Directors' fiduciary duties, and was an abuse of power for collateral purpose and, thus, an unlawful act which neither Ds 16-20 might, in the normal course of business, lend their assistance to.
37. On 26th May 2018, D19 and D20 proposed the release of a RNS announcement for the purposes of seeking to diminish the standing of C1 and, with it, to further the Control Objectives."
39. On 29th May 2018, the Director Defendants, with the assistance of D19-D20, issued an RNS announcement at the request of D10-D12:
39.1. Which the Four Directors later accepted was not required for regulatory purposes but which was intended to portray the Claimant in a negative light to influence shareholder voting.
39.2. Which in fact did so.
39.3. Which did so falsely, in that it misrepresented that C1 had inter alia "referring to challenges with C1 which were not germane".
39.4. Which was published despite C1, by his then solicitors, warning the Four Directors and/or the Company that the contents of the same were inaccurate and misleading.
39.5. Which resulted in the share value of the Company dropping by 16.6%, £144 million of which C1 was an 8% shareholder.
40. Such a course of conduct and included the sending of two submissions to the Takeover Panel;
40.1. The first of which was initially drafted (by way of first draft) on or around 4th June 2018 by Leon Ferera, for Jones Day, instructed on behalf of D10 and with (it is to be inferred) the knowledge and approval of D11 and D12 acting at all times for D10. This was subsequently amended by D20 to take into account further input provided by D10 and/or Jones Day acting for D10 on 7th June 2017 and D11 on 8th June 2018.
40.2. The second submission was drafted by D19 with the input of D10.
40.3. Such submissions were placed and issued on D19's letterhead at the request of Leon Ferera acting on behalf of D10, and with the approval of D19 and D20. This was done so as to conceal the involvement of D10 and Jones Day; and instead to give the impression that such a submission originated from D19 acting as the Company broker and, in turn, from the Company.
40.4. Such submissions were misleading. Such submissions were predicated upon the contention that C1 was acting as a concert party with others to seek to exert control over the Company when in fact it was the Participants who sought to do so.
40.5. Such submissions failed to mention the role of D10 and Jones Day in instigating, preparing and assisting in the submissions without the knowledge of the full board of the Company and the Take Over Panel.
40.6. Such submissions failed to state Mr Brady had not confirmed his intention before the full board, to stand down if the Chairman was not re-elected.
40.7. Such submissions falsely stated that Cenkos had resigned as the Company broker due to a conflict of interest. In fact, the reason for the resignation was following the issuing of the misleading 29th May 2018 RNS. Such was the concern, and with the brokers experience, Cenkos confirmed a regulatory issue arose, as being the requirement to resign, which was known by the Four Directors. Cenkos,communicated
the reason directly to D10 before any submission was made to the Takeover Panel.
40.8. Such submissions falsely stated that the Board was required to address a number of challenges posed in the recent past by C1 as set out within 29th May 2018 RNS, which RNS was produced and was relied upon as part of such a submission.
40.9. Such submissions falsely stated that Mr Laycock was on sick leave when in fact he was in the office.
40.10. It is properly to be inferred that such submissions were prepared, approved and drafted with the intention and effect of preventing C1 from purchasing additional shares in the Company, and thus so as to procure or assist in procuring the Control Objectives.
41. On or around 6th June 2018, the Four Directors (or caused to be signed) and D19 and D20 agreed to a side agreement with D19 to pay an extra £10,000 per week back dated to 8th May 2018 and a £100,000 success fee, to secure the re-election of Mr Ferguson at the AGM and, thus, the Control Objectives. C1 and C2 understand and aver that the fact of a success fee was only known to the Four Directors as well as to D19 and D20, but was otherwise intentionally concealed from others, and was not presented to or in any event approved by the Board, or published in the company's annual report, something that would have been known to the Four Directors as well as to D19 and D20."
"45. It is to be inferred that the Four Directors…acting with D10-D12, who had already instructed D19-D20 to make submissions to the Take Over Panel, regarding a concert party, were acting so as to prefer their own interests over those of all shareholders to whom they owed duties, and were intent in achieving the Control Objectives. It is to be inferred that such motives, and the fact that the Four Directors' conduct constituted a breach of their duties owed to the Company and its shareholders, was known to each of the Participants."
46. On 14th June 2018, the Four Directors removed or caused the removal of C1 as an employee and director of the Company on grounds of alleged gross misconduct. The act of so doing and/or the timing of the same was intended by the Four Directors to:… 46.4. Allowing the Four Directors, D10-D12 and D19-D20, to further Project Shelley, and further promote the aggressive PR campaign, causing additional damage to C1 and C2."
"Arrangements for and in respect of voting at the AGM
50. On 19th June 2018, the Four Directors and D19-D20 discussed with Ms. Brace (as company secretary for the Company) the possibility that Mr Tinkler's LTIPs might be withheld from him following his dismissal. Such discussions were undertaken without the involvement of either Mr Garbutt (as the Chair of the remunerationcommittee)
or Mr Laycock (as the then
CFO).
51. On 20th June 2018, the Four Directors authorised and procured the transfer of 1,715,000 Treasury shares to the EBT from the Company's treasury at a value of around £4.4m.
52. On 25th June 2018, the Four Directors authorised and procured the transfer of 5,320,425 Treasury shares to the EBT from the Company's treasury at a value of around £13.6m.
53. The transfer of the shares were authorised by the Four Directors and accepted by D16-D18 even though:
53.1. There was no requirement to transfer more than 180,000 shares in the Company to satisfy the LTIP awards which were due to vest on the 22nd June 2018; and
53.2. In any event those awards could have been satisfied direct from Treasury shares.
54. It is, in turn, to be inferred that each of the Four Directors and each of D16-D18, and D19-D20 in fact knew that there was no requirement for the transfer of such a number of shares and, in turn, that such transfers were being conducted for purposes other than to cover any need for shares to vest within the EBT and, in turn, for improper purposes, namely the pursuit of the Control Objectives.
55. On 26th June 2018, the Four Directors, with the assistance of D18, D19 and D20, who was aware of and asked to participate in the purchase, arranged the sale of 2,700,000 shares from the EBT, to shareholders known to be willing to vote at the AGM in favour of resolutions intended to achieve the Control Objectives, and to Mr Brady (who was known to be similarly willing) at a price of 236 pence per share.
56. Further D19 by D20 confirmed that the sale of the shares had taken place, and the shares had gone into "friendly hands". It is inferred this act was intended and was known to frustrating act which was intended to assist in and in fact assisted in the pursuit of the Control Objectives.
57. By letter sent by email by D17 of 5.22pm 3rd July 2018, D16 and D17 stated that it would abstain from voting in favour of or against the motion for the re-election of Mr Ferguson."
"60. On 5th July 2018, Rosenblatt produced a draft letter to be sent to the EBT in order to threaten litigation against D16 (which would necessarily involve D17 and D18 in addition) with the express intention of influencing Ds 16 to 18, as trustees of the EBT, to cause or permit the shares in the Company held in the EBT to be voted so as to secure the Control Objectives. In light of the subsequent concealment of such a letter, C1 and C2 do not know of the contents of the same nor whether this was in fact sent.
61. It is, however, to be inferred that such correspondence andcommunication
included the threat of litigation against D16. Such correspondence reflected the existence of a course of action which such a course of action was successful, in that D16, D17 and D18 Mr De Putron D18 acceded to such demands, as set out below.
62. As a result of such conduct, Jupiter D16 confirmed on the eve of the AGM that the previous stated intention of abstaining would now change to a vote "FOR" the re-election of the Chairman. It is, in turn, to inferred that following and as a result of the application of pressure as set out above, D's 16-18 failed to exercise their independent mind and bowed to the pressure placed upon them, thereby knowingly assisting in the pursuit of the Control Objectives in circumstances in which they knew or ought to have known that this was itself unlawful.
6th July 2018 AGM
63. At an AGM of the Company held on 6th July 2018:
63.1. Mr Ferguson was re-elected as chairman of the Company's Board as a result of the passing of resolution 2 ("the Ferguson Election Vote"). Such a vote was recorded as having been passed by 154,741,139 (being 51.21% of the votes cast) in favour, with 147,426,975 votes (being 48.79% of the votes cast) against.
63.2. C1 was re-elected as a director of the Company ("The Tinkler Election Vote"). This occurred despite Mr Ferguson exercising his discretion to vote 40,426,908 shares against the resolution providing for the re-election of C1 even where shareholders had submitted proxies stating an intention to abstain from such a resolution.
64. The Ferguson Election Vote was passed at the AGM or otherwise declared to have been passed, as a result of the number of votes in favour of the relevant resolution (being resolution 2) being counted to be 154,741,139 out of 302,168,114 votes cast, and being noted to represent 51.21 % of the overall votes available. Such calculations depended on:
64.1. Counting 658,000 votes in favour of the resolution which ought not to have been counted because they had already vested in beneficiaries of the EBT ("the Overvotes").
64.2. Included in the 'For' count on resolution 2, there were 3,417,891m shares voted by the Chairman which were in fact time barred, and void, the relevant proxy form having been returned only after the deadline of 11am on 4th July 2018 for doing so had passed ("the Time Barred Proxy Votes") as set out below.
64.3. On 4th July 2018, after the deadline for the receipt of proxy votes, the Four Directors, Rosenblatt, D19 and D20 were made aware that 3,417,891m shares to be voted had been lost and not counted after the deadline for receiving proxy votes. D19 and D20 agreed to obtain a letter of representation in order that these votes could be voted by proxy by the Chairman, "FOR" the Chairman, at the AGM. D19 and D20, with this knowledge, permitted such shares to be voted, which achieved the Control Objectives, and gerrymandered the AGM vote. It is inferred that D19 and D20 breached their fiduciary duties owed to the Company and all shareholders when acting as the corporate broker to the Company. This share transaction itself provided the winning vote to re-elect the Chairman, without such, and this gerrymandering, the Chairman would not have been re-elected.
64.4. Included in the "For" count for resolution 2 that 2,703,720m shares that were sold to "friendly hands" from the EBT which were arranged by D19 and D20.
64.5. The inclusion of the votes from the shares improperly transferred to parties on terms requiring the recipients to vote in favour of the Control Objectives, which gave further 2.37% voting rights in favour of the Chairman, which ultimately resulted in the Chairman being re-elected.
64.6. The further actions of the Four Directors, D10-D12 and D19-D20, in the making of misleading submissions to the Take Over Panel, which restricted C1 and other dissident shareholders, in purchasing shares and protecting their property and investment.
64.7. The outcome of the AGM without the gerrymandering of the vote, and the ultra vires acts, would have recorded a different result had all these matters been declared at the time."
(3) Causation
"69. Without prejudice to the generality of the foregoing, C1 and C2 note and aver that the Control Objectives would not have been achieved but for:
69.1. The termination of C1's employment and role as director with effect from 14th June 2018 and again as director from 7th July 2018. 69.2. At or in connection with the AGM 69.2.1. The transfer of shares from treasury to the EBT in excess of the numbers required. 69.2.2. The sale of 2,703,720 shares to parties who hadcommitted
to vote in favour of the re-election of Mr Ferguson. 69.2.3. The overvoting of shares in favour of the re-election of Mr Ferguson. 69.2.4. The voting of the 3,417,891 Time Barred Proxy Shares in favour of the re-election of Mr Ferguson. 69.2.5. The exertion of pressure on D16 and, in consequence, Ds 16-D18 election to permit the EBT shares to be voted in favour of resolutions which had as their aim achievement of the Control Objectives."
"70. Conversely, but for the matters set out above: 70.1. C1 would have remained as, or otherwise been re-elected as, a member of the Board 70.2. C1 would have revealed the Control Conspiracy, and the misuse of Company funds, along with the parties involved in the providing of dishonest assistance to secure the re-election of the Chairman. 70.3. Mr Ferguson would not have been re-elected as Chairman. 70.4. Upon Mr Ferguson not being re-elected, the other non-executive directors (being Mr
Coombs and Mr Woods would have tendered their resignation). C1 and C2 note, in this respect, upon the announcements made by Mr Coombs and Mr Woods, on 25th May 2018, and prior to the AGM of 6th July 2018, announcing their intention to resign as non-executive directors of the Company in the event that Mr Ferguson was not re-elected as Chairman."
(4) Unlawful Means
"75. The unlawful acts carried out in order to achieve the Control Objectives pursuant to the Control Conspiracy included:
75.1. The Regulatory News Service (RNS) announcement on 29th May 2018 falsely portrayed the Claimant in a negative light, with the intention of influencing shareholder voting.
75.2. The submissions to the Takeover Panel which were intended to, and had the effect of, preventing C1 from acquiring further shares in the Company, such as to prevent him from obtaining further voting rights and, in turn, to seek (successfully) to achieve the Control Objectives. The submissions provided purportedly on behalf of the Company to the Takeover Panel were, in any event, misleading and inaccurate.
75.3. The pattern of the transfer of shares, as set out above, involved withholding rewards due to beneficiaries of the EBT, was done with the illegitimate aim and effect of preventing the beneficiaries instructions from voting against the achievement of the Control Objectives.
75.4. Further the pattern of the transfer of shares, as set out above, involved the transfer of Treasury shares to the EBT and or with the assistance of D16-D20, with the illegitimate intention of doing so in order that they would be voted in favour of the achievement of the Control Objectives.
75.5. The Four Directors together with D19 and D20, conspired to arrange the removal of C1 on 14th June 2018, as an employee and director with the illegitimate aim and effect of enabling the transfer of 1,715,000 Treasury shares on 20th June 2018, and a further transfer of 5,320,425 Treasury shares to the EBT on 25th June 2018, with the instruction they would be voted in favour of resolution 2, the re-election of the Chairman.
75.6. The transfers of 7,035,425 shares (being the aggregate total of those transferred on 20th and 25th June 2018, including 2,503,527 already held in the EBT resulted in a total number of shares held by the EBT being 9,538,952, which amounted to 2.7% of the Company's issued share capital). The transfer from Treasury to the EBT was carried out for the improper purpose of securing additional votes for the intended re-election of Mr Ferguson at the AGM, and securing the position of the Four Directors for personal financial gain.
75.7. The sale (as arranged by D19-D20) of 2,700,000 shares from the EBT to friendly related party shareholders and to Mr Brady with the illegitimate purpose of ensuring the re-election of Mr Ferguson at the AGM, and gerrymandered the vote.
75.8. The manner and deployment of the shares by way of voting at the AGM, as set out above, including by way of the overvoting of the Overvoted Shares and the voting of the Time Barred Proxy Shares was contrary to the requirements of the Guernsey Companies Act andcommitted
with the intention and effect of ensuring the achievement of the Control Objectives. These requirements must have been known to D10-D12 and D16-D20 who all operated in a regulatory environment. D16-D18 operating in Guernsey.
76. It is to be inferred that, having been engaged and/or their assistance ought for the express purpose of providing assistance to the Four Directors as to their pursuit of the Control Objectives, each of the Participants knew of the Control Objectives, and in turn knew, or would have known, but for consciously or recklessly electing not to consider such a possibility, thereby turning a 'blind eye' to such matters, that means by which these were to be pursued did not represent the exercise by the Company or the directors of the same of their powers for proper purposes and that the means in fact adopted were otherwise unlawful, in each case as set out above."
(5) Overt Acts
(i) Invesco
"77.7. D10 and Mr Ferera and Jones Day (acting as solicitors for D10) relied upon the 29th May 2018 RNS announcement in making the submission to the Takeover Panel, when it was known that the announcement contained false and misleading information. This was despite the solicitor acting on behalf of C1 speaking directly to D11 on 29th May 2018 (before the release of the RNS) pointing out the false and misleading statements. Furthermore, the company's own in house counsel also set out a document which highlighted the factual inaccuracies. Regardless, D10-D12, continued to rely upon the 29th May 2018 RNS when presenting submissions to the Takeover Panel, which were relied upon to restrict C1."
(ii) Orbitus
"78.1 D16-D18 accepted receipt and custody of 7,035,000 shares transferred from the Company's Treasury in breach of their statutory and fiduciary duties and the trust deed owed to the beneficiaries, of which Mr Tinkler C1 was one, and not in accordance with the instructions they had received from the beneficiaries."
(iii) Stifel
"79.2. D19-D20 produced the 29th May 2018 RNS announcement, knowing it to be partially false and misleading, with the intention of causing substantial financial and reputational damage to C1."
(6) Dishonest assistance
"80. In agreeing to act as set out about, whilst doing so in the knowledge that such acts were intended to and would in fact assist in the pursuit of the Control Objectives, which were themselves illegitimate, the assistance provided by Ds 10-12 and Ds 16-20 amounted to dishonest assistance provided to the Four Directors and/or the Company.
81. Having each joined and actively participated in the Control Conspiracy, as set out above, and having continued to do so until the Control Objectives had been achieved, and/or having provided dishonest assistance to or in support of same as set out above, each of Ds 10-12 and Ds 16-20, is/are jointly liable to C1 and C2 for the loss sustained by C1 and C2 in consequence of the Control Conspiracy."
(7) Loss
"97. Further, as a result of the Control Conspiracy C1 sustained a crystallised loss in the value of his shareholding in C1, in that: 97.1. As of early May 2018: 97.1.1. C1 owned 27,326,811 shares in the Company. 97.1.2. The market value of such shares was approximately 251p per share. 97.1.3. The market value of C1's shareholding was, in turn, approximately £68,560,176. 97.1.4. C1 in fact intended to sell down 10 million shares, having instructed the broker, to sell at a strike price of £2.90, when achievable. C1 did in fact sell shares in September 2017 at over £2.90 per share.
97.2. As a result of the Control Conspiracy: 97.2.1. C1 was required to and did sell 27,314,811 such shares in the Company, representing substantially his entire shareholding, between July 2018 and January 2020. 97.2.2. C1 was required to and in fact did so because inter alia 97.2.2.1. He required such funds to fund his conduct of the legal proceedings (as referred to above), which would not have eventuated but for the fact of the Control Conspiracy and the fact of the achievement of the Control Objectives. 97.2.2.2. He was, in turn, unable to await the attainment of a target sale price for such shares but was, instead, required to sell as dictated by the need for funds. 97.2.3. Further, the value of the shares in the Company decreased as a direct and foreseeable result of the Control Conspiracy and/or the steps taken therein, and/or the adverse publicity and/or market concern which arose as a result of the course of conduct involved in and/or the manner of the pursuit of the Control Objectives. 97.2.4. C1 in fact received the sum of £36,518,015 for so doing."
97.4. In turn: 97.4.1. But for the fact of the Control Conspiracy and the fact of the achievement of the Control Objectives, C1 would have received at least an additional £31,747,351 for the sale of the same, being the difference between the value of such a shareholding as of 28th May 2018 (£68,560,176) minus anticipated costs for the realisation of such a shareholding (estimated at £290,809) minus the sum of £36,518,015 in fact received; alternatively 97.4.2. In any event C1 sustained loss in the form of a loss to or a series of losses to the value of his shareholding in the Company, to be assessed.
98. Further, a result of the pursuit of the Control Conspiracy and the achievement of the Control Objectives, C2 suffered the cancellation of the 5-year Management Agreement entered into between the Company and C2 and pursuant to which C2 would otherwise have remained entitled, but for the pursuit of the Control Conspiracy and/or the achievement of the Control Objectives. The Court will be invited to assess the amount of such losses."
IV. The Law
(1) Admissions
"14.1— Admissions made beforecommencement
of proceedings
14.1(1) A person may, by notice in writing— (a) admit the whole or any part of another party's case beforecommencement
of proceedings (a "pre-action admission"); (b) withdraw a pre-action admission before
commencement
of proceedings, if the person to whom the admission was made agrees. (2) After
commencement
of proceedings— (a) any party may apply to the court for judgment on the pre-action admission; and (b) the maker of the pre-action admission may apply to the court for permission to withdraw it."
(2) Abuse of Process
"Failure to use reasonable diligence. As for the relevance of a claimant's failure to use what the court might consider to be reasonable diligence in finding out facts relevant to whether he has a possible claim, it may be that this could possibly be relevant to the enquiry described by Lord Bingham, depending on the circumstances. On the other hand, it does not seem to me that there can be a general principle that a potential claimant is under a duty to exercise reasonable diligence, not yet having brought proceedings asserting a particular claim, to find out the facts relevant to whether he has or may have such a claim. Moreover, I do not see how it can be relevant at all that the claimant may have failed to use due diligence in attending to his own interests at the time of the transaction or the events giving rise to the claims asserted. Unless, on the merits, that is a complete and inevitable defence to the claim, it seems to me to be entirely irrelevant to the enquiry which is necessary under Johnson v Gore Wood. Nothing in Sir James Wigram's observations in Henderson v Henderson supports that. That, however, is the context of the Master'scomments
on lack of reasonable diligence in paragraphs 70 and 72. If relevant at all, an enquiry as to any suggested lack of diligence on the part of the claimant would have to involve considering the circumstances of the particular claimant, including what knowledge he did have of the facts at any relevant stage, in order to decide whether he knew enough to put him on enquiry so as to try to find out more. In this context, as generally, it is also relevant that the onus is always on the defendant to show that the claimant's conduct is an abuse of process."
"79. The fact that a previous claim was struck out (rather than having the issues decided at trial) is no bar to the second claim being struck out as an abuse (see Panton & Anor v Vale of White Horse District Council & Anor [2020]EWHC
167 (Ch)).
80. The first of Mr Spalton's points was that the Court of Appeal has found there was no unlawful act. I am not persuaded that that is correct. In my view the Court of Appeal did not decide whether Judge Waksman had been correct to decided that there was no prospect of showing the existence of exceptional circumstances: see per Asplin LJ at [68]. I find it hard to see that if a point has been appealed against, and that appeal was not resolved, it can be an abusive collateral attack to take the point in subsequent proceedings.
81. But I agree with Mr Spalton that the Court of Appeal upheld Judge Waksman's finding that there was no real prospect of making good an allegation that BDO combined with Barclays to use unlawful means: see per Asplin LJ at [60] and Nugee J at [73].
82. In those circumstances it seems to me that the new claim, insofar as it relies on the same conspiracy as was alleged in the Barclays claim, is quite clearly a collateral attack on that finding. Indeed it is only collateral at all because BDO was not a party to the Barclays claim: that aside, the new claim is a full frontal attack on a critical finding made against Elite and Decolace in the earlier Barclays claim. This is therefore in my view a paradigm case of a collateral attack and it clearly renders the new proceedings an abuse of process unless the position can be saved by one or other of Mr Mayes' two points."
"86. Mr Mayes' second point was that the new claim is materially different to the Barclays claim. He suggests that the unlawful means alleged go beyond those alleged in the Barclays case.
87. I reject this submission for two reasons. First, I do not accept that the new claim does adequately plead any unlawful means beyond the breach of the undertaking, I have already quoted paragraph 44 of the POC in the instant action, and it seems to me that the only fair reading of the pleading is that that sets out what is being alleged as unlawful means. The only thing it pleads is breach of the undertaking. Secondly, the earlier paragraphs which Mr Mayes says expand the unlawful means are paragraphs which alleged that the BDO report was deliberately inaccurate. (paragraphs 13 to 17 of the POC). Even if that was part of the pleading of unlawful acts, and were true, I do not see that that has any bearing on the question of whether there was in fact a conspiracy or agreement between BDO and Barclays: it is the absence of any such agreement which is the critical feature of the CA decision and also therefore the critical feature in the collateral attack point."
(3) Conspiracy
(1) Combination. The claimant must prove a combination or understanding between two or more people aimed at another person to use unlawful means. It is unnecessary to establish a binding agreement and a tacit agreement or understanding will be sufficient: see Belmont Finance Corporation v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 at 404b-c (Buckley LJ).
(2) Intention to injure. The claimant must prove that the defendant had the relevant intention although it is not necessary to prove that it was the sole or predominant intention and it is sufficient that the defendant intends to advance their economic interests at the expense of the claimant's interests: see Racing Partnership Ltd v Sports Information Services Ltd [2020] EWCA Civ 1300, [2021] Ch 233 at [154] (Arnold LJ).
(3) Unlawful means. The claimant must prove that one or more defendants committed
unlawful conduct pursuant to the combination. The concept of unlawful means is wide and extends to
common
law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations and also breaches of confidence. Indeed, it embraces all acts which a defendant is not permitted to do by the civil or criminal law: see OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1 at [150] and [162] (Lord Hoffmann). Moreover, it is not necessary to show that the unlawful acts or conduct is actionable by the claimant: see Revenue and Customs
Commissioners
v Total Network SL [2008] UKHL 19, [2008] 1 AC 1174.
(4) Causation. The unlawful act must be "indeed the means" by which the claimant suffers loss and damage. In Total Network (above) Lord Walker stated that the concept of unlawful means includes both crimes and torts "provided that they are indeed the means by which harm is intentionally inflicted on the claimant (rather than being merely incidental to it)." See also JSC BTA Bank v Ablyazov (No 14) [2018] UKSC 19, [2020] AC 727 (SC) at [14] (Lords Sumption and Lloyd-Jones).
(4) Amendment
"The question whether the defect in the pleading could be cured was simply whether a pleading could properly be formulated to advance a claim against PZU which had a real prospect of success. That would not require it to be shown that there was a cause of action which was bound to succeed, but merely one which was arguable in the sense that it had a real, as opposed to fanciful, prospect of success. This is the merits test for striking out a statement of case under CPR 3.4(2)(a), for reverse summary judgment, and on an application to amend: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd. [2021] EWCA Civ 33 [2021] 3 All ER 978 at [16]-[18]."
(5) CPR Part 31.22
"31.22— Subsequent use of disclosed documents and completed Electronic Documents Questionnaires
31. 22 (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where—
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.
(3) An application for such an order may be made—
(a) by a party; or
(b) by any person to whom the document belongs."
"52. There are a few further principles which were not in issue in that case, but which are material for the purposes of the case before me.
53. The first is that the burden is on the party making the application to demonstrate cogent and persuasive reasons for allowing the collateral use sought. In Crest Homes plc v Marks [1987] AC 829, 860 Lord Oliver of Aylmerton stated that the court would not permit the use of disclosed documents for a collateral purpose "save in special circumstances and where the release or modification would not occasion injustice to the person giving discovery".
54 Secondly, what constitutes "use" of a document for the purpose of CPR 31.22 is very broad – perhaps more so than most litigators might think. On one view the court's permission is required even to review the documents. In truth this is an aspect of the drafting which is difficult. However the courts have not reacted to that difficulty by adopting a laissez faire attitude. In IG Index plc v Cloete [2015] ICR 254, Christopher Clarke LJ emphasised that the restriction extended not only to the documents but to the information contained therein, and (at para 40) that the restriction extended to: "(a) use of the document itself e.g. by reading it, copying it, showing it to somebody else (such as the judge); and (b) use of the information contained in it. I would also regard "use" as extending to referring to the documents and any of the characteristics of the document, which include its provenance."
"59. On the basis of these authorities it seems that:
(i) Absent some provision in the relevant order, doing anything other than realising, in the course of review for the purposes of the proceedings in which documents are disclosed, that a document or documents would be relevant to other proceedings actual or contemplated, may constitute a collateral use.
(ii) The best course is therefore to seek permission for collateral use to review as soon as the issue is identified.
(iii) It would then be necessary to apply for permission for collateral use to deploy the documents if a (permitted) review concluded that it was desirable to use them.
60. Moving on from the more difficult aspects of this area, it seems to be quite clear (were it not self-evident) that using information and/or documents from one set of proceedings to threaten a third party falls squarely within the scope of the restriction on collateral use (see, for example, Birss J in Grosvenor Chemicals Ltd v UPL Europe Ltd [2017]EWHC
1893 (Ch) at [162]).
61. What happens if this proper course is not taken? The answer is that the court has a jurisdiction to grant retrospective permission, but will exercise it only in limited circumstances."
"First, there are taken to fall under the rule certain categories of document, in particular those coming within the pre-reading of the judge. It does not have to be established that the judge has actually read the documents: once the category is established, it is for a party alleging that they have not in fact been read to establish that fact, something that has to be achieved without inquiry of the judge: see Barings v Coopers & Lybrands [2000] 1 WLR 2353, 2367, para 53. Second, it therefore follows that not everything that is disclosed or copied in court bundles falls under this rule: the Connaught approach is restricted to documents to which the judge has been specifically alerted, whether by reference in a skeleton argument or by mention in the "reading guide" with which judges are now provided at least in patent cases. Third, since the Connaught approach is based upon the assumed orality of a trial, documents, however much pre-read by the judge, remain confidential if no trial takes place, but the application is, for instance, dismissed by consent, albeit by a decision announced in open court: see SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498."
"I do not find it necessary to decide whether I have a jurisdiction to grant the plaintiffs a retrospective leave. It may be that the court does have some such jurisdiction but, if so, it seems to me that the circumstances in which it would be proper to exercise it would be rare. It is one thing to release a party from an undertaking to the court so as to permit him to do in the future that which he has been prevented from doing in the past. It is another thing for the court to find, as I have, that a party has abused the process of the court by his breaches of an undertaking to it and for it then to give that party a retrospective release from the undertaking so as to wipe away the abuse of the process which he hascommitted.
If I do have the jurisdiction, I can anyway see no good reason to grant any such retrospective leave. Undertakings of the present sort are important ones. They have been the subject of considerable discussion in the reported cases over recent years and their nature and effect are, or should be, well known to practitioners. It seems to me that if, as I have found, the prosecution of the 1995 action to date has involved an abuse of the process then, in a sense, that finding by itself suggests that the action should be struck out.
I do not, however, consider that that result must inevitably follow. If, in principle, I considered it just to allow the plaintiffs to use the discovered documents for the purposes of a separate action raising the same claims as the 1995 action, then, absent any special considerations pointing in a different direction, there would in my view be much to be said for declining to strike out that action and for giving leave to the plaintiffs to make use of the documents for its further prosecution. Such an order would, no doubt, amount to a de facto validation of what had happened to date, although the court could perhaps reflect its disapproval of that by the making of appropriate costs orders. The alternative course would be to strike the action out, with the usual orders as to costs, but to give leave to the plaintiffs to start a new like action. The latter course is one which would no doubt visit a greater penalty on them and it may be that, in appropriate cases, it would be the right type of order to make. In the circumstances of the present case, however, I would, in principle, subject to the special consideration to which I shall come, favour the former alternative, which would be likely to achieve both an overall saving of costs and the prospect of an earlier trial of a proper claim."
V. CPR Part 14.1
VI. Abuse of Process
(1) Combination
(i) The pleaded case
"772. It was argued on behalf of Mr Tinkler (picking up phrases that had been used by one or more of the Four Directors in evidence) that the majority had seriously mischaracterised what had been his perfectly constitutional and proper proposal that shareholders should vote on Mr Ferguson's directorship as an "attack on the Company" and a "coup". His
counsel submitted that the suggested justification of their actions involved, on that basis, wrongly equating the re-election of Mr Ferguson with "the survival of the Company" and wrongly adopting the position that they were duty bound or at least entitled to "fight like tigers" to ensure his re-election.
773. In the light of my findings under Issue 3, I cannot accept Mr Tinkler's argument that the Four Directors' characterisations of his actions were misconceived. Contrary to his counsel's protest that "there was no attack on the Company, or indeed on the Board", he had set about trying to undermine the Board from the outside. He did so without even properly airing with any of his co-directors such concerns as he may have had, beyond that of his personal under-remuneration, and which might have been germane to the question of whether or not Mr Ferguson should remain in office. Once he had been talked out of his earlier idea of stepping down from the Board, most obviously by Mr Jenkinson, he appears to have been more willing to discuss any strategic plans he might have had for the Company with one or more of Messrs Jenkinson, Whawell, Woodford and Day, rather than his co-directors on the Board."
"777. In these circumstances, where Mr Tinkler had led Mr Ferguson to believe in January 2018 that he was going to discuss with shareholders the timing of his stepping down from the Board but instead had set about breaching his duties in the way established under Issue 3 above, I think the Four Directors were justified in believing they were facing the start of an attempted coup. And, as Mr Coombs put it, they were addressing a situation of chaotic destabilisation within the Company that Mr Tinkler had brought about."
(1) Paragraphs 32 to 36 contain the allegation that the transfer of the Treasury Shares (as defined) was ultra vires and that the Four Directors authorised the transfer for an improper purpose and in breach of their fiduciary duties.
(2) Paragraph 45 contains the allegation that the Four Directors preferred their own interests to their duties to shareholders in relation to the submissions to the Panel and that the fact that this constituted a breach of their duties was known to each of the Active Defendants.
(3) Paragraphs 50 to 54 contain the allegation that the Four Directors authorised the two transfers of shares to the EBT on 20 and 25 June 2018 for improper purposes and that Orbitus and Stifel knew that there was no requirement for the transfer of those shares.
(4) In paragraph 74 Mr Tinkler pleads that the unlawful means by which the Four Directors themselves achieved the Control Objectives was by exercising their powers for improper purposes.
(5) In paragraph 75 Mr Tinkler pleads that the Active Defendants knew or turned a blind eye to the fact that the means by which the Control Objectives were pursued did not represent the exercise by the Four Directors of their powers for proper purpose and that the means which they adopted were unlawful.
(ii) Amendment
(1) On 20 November 2024 Invesco and Stifel issued and served their Strike Out Applications to strike out and on 3 December 2024 Orbitus issued and served its Strike Out Application. Mr Tinkler has had over six months to consider and, if necessary, formulate the necessary amendments to the Particulars of Claim. Moreover, there is no reason why he could not have done so on a protective basis. But he chose not to and before the hearing of the Strike Out Applications, he gave no indication that he intended to make such an application.
(2) There is no application or draft of the Amended Particulars of Claim before the Court. Given that Mr Tinkler issued and served the Claim Form at the very last possible date before the limitation period expired, this is by any standards a stale claim. He has not put any evidence before the Court to justify granting him further time or indulgence to reconsider his case.
(3) But in any event, it would be necessary for Mr Tinkler to demonstrate on any application for permission to amend that the amendments have a real prospect of success. In the absence of properly formulated amendments and my further conclusions (below), I am not satisfied that he can do so. Moreover, I am not prepared to take it on trust in the same way as Popplewell LJ was prepared to do in Alton v PZU (above). That was a relatively simple case and this is a complex one involving serious allegations of wrongdoing.
(4) I give two important examples of the hurdles which Mr Tinkler will have to overcome. First, there is no suggestion that Orbitus had any direct communication
with Invesco or Stifel or any involvement in the submissions to the Panel. Secondly, Mr King did not explain how Mr Tinkler would meet Mr Temple's point that if the Active Defendants conspired to
commit
a breach of Rule 9, this was not indeed the means by which Mr Tinkler suffered a loss and was purely incidental.
(5) Moreover, it was common
ground that the limitation period has now expired. It will be necessary, therefore, for Mr Tinkler to apply to substitute a new claim against the Active Defendants under CPR Part 17.4(2) for the claim against the Four Directors and to satisfy the Court that it arises out of the same or substantially the same facts as are already in issue. In Alton v PZU the Court at first instance accepted that it was arguable that this test was met. But I am not satisfied that Mr Tinkler has any real prospect of obtaining permission given that the only current allegation of a separate combination between the Active Defendants is the passing reference in paragraph 40.4.
(6) Finally, Mr Tinkler made no application under CPR Part 31.22(b) for permission to use any documents disclosed in the Fraud Claim for the purposes of considering whether to apply for permission to amend. For the reasons which I set out below, I consider that he will require permission before he can do so. Moreover, given that I have found the existing Claim to be abusive and I am satisfied that Mr Tinkler's decision not to apply for permission under CPR Part 31.22(1)(b) was a considered one, I consider it unlikely that I would be prepared to grant permission.
(iii) Consequences
(2) Intention to injure
(3) Unlawful Means
(i) Improper purpose
(ii) The 29 May RNS
"14. The Claim Form was issued on 8 June 2018 (but the Particulars of Claim were not served until 26 June 2018). On 17 December 2018, i.e. after the Stobart Action had been tried, but before judgment was handed down, I determined issues relating to the meaning of the Announcement for the purposes of the Malicious Falsehood Action ([2018]EWHC
3563 (QB)) ("the Meaning Judgment"). The terms of the Announcement are set out in the Meaning Judgment ([4]).
15. I found (at [39]) that the single meaning of the Announcement for the purposes of the defamation element of the Malicious Falsehood Action was:
(a) The Claimant had presented a series of challenges to the Board of Stobart which included those set out in [paragraphs 39 to 43 of the Announcement], the most recent of which was his opposition to the re-election of Iain Ferguson as Chairman of Stobart.
(b) A vote to remove the current Chairman would weaken Stobart's corporate governance, create instability, present a number of serious risks to Stobart, identified in [paragraphs 45 to 49 of the Announcement], and would not be in the best interests of the shareholders.
(c) The Claimant's behaviour was disruptive; and, in relation to the challenges identified in (a) unreasonable and his opposition to the re-election of the Chairman was regrettable and risked destabilising Stobart.
16. I also held that meaning (a) was factual and not defamatory of Mr Tinkler and that meanings (b) and (c) were expressions of opinion: [40]-[44]. Only meaning (c) was defamatory of Mr Tinkler, but not seriously enough to raise an inference of serious harm to reputation under s.1 Defamation Act 2013: [45]. In consequence, if the defamation element of his claim was to continue, Mr Tinkler would have to take on the burden of establishing, by evidence, that the requirements of s.1 were met: [46].
17. As for the balance of the Malicious Falsehood Action, I held (at [56]) that, based on the Mr Tinkler's originally pleaded meaning, the following was an available meaning for the purposes of malicious falsehood ("the Malicious Falsehood Meaning"):
(a) Mr Tinkler destabilised the Board at a crucial time for the business; and/or (b) Mr Tinkler required the Board to deal with challenges, including:
i. the settlement of financial issues arising from a previous related party transaction when Mr Tinkler was CEO;
ii. a proposed selective buy-back of part of Mr Tinkler's stake in Stobart;
iii. a proposed additional ex-gratia bonus for Mr Tinkler of shares then worth some £8 million;
iv. a proposed buy-out of Stobart when the share price was in the range of 100p to 120p; and/or
v. a proposed related party transaction associated with a recent aborted airline transaction.
To the extent that Malicious Falsehood Meaning (a) contained opinion, as I had found, then Mr Tinkler would have to take on the burden of proving that it was false and published by the Defendants maliciously (see [16] in the Meaning Judgment).
18. Mr Tinkler's appeal against the Meaning Judgment was dismissed by the Court of Appeal on 15 May 2019 ([2019] EWCA Civ 819). Longmore LJ held that meaning (c) for the defamation claim, was "very much at the lower end of the scale" and one from which no inference of serious harm to reputation could be drawn [28].
19. Little happened in the Malicious Falsehood Action between the Meaning Judgment on 17 December 2018 and the appeal hearing on 3 April 2019. Importantly, however, it was during this period that the Stobart Judgment was handed down, on 15 February 2019.
20. A week prior to the Court of Appeal handing down its judgment on 15 May 2019, a hearing took place before Nicol J to deal with disputed amendments that the Claimant wished to make to his Particulars of Claim consequent upon the Meaning Judgment. One of the issues raised at the hearing was the adequacy of Mr Tinkler's pleaded case on harm to reputation. As noted above (see [16]), one consequence of the Meaning Judgment was that Mr Tinkler was now required, as part of his defamation claim, to demonstrate serious harm to his reputation caused by publication of the Announcement.
21. In his reserved judgment, handed down on 14 June 2019, Nicol J gave Mr Tinkler permission to make limited amendments to his Particulars of Claim ([2019]EWHC
1501 (QB)). The Judge held that Mr Tinkler was required to give full details of the facts and matters on which he relied on the issue of serious harm ([17]) and noted that his existing Particulars of Claim did not include any plea of special damage ([21]). It is very clear from Nicol J's judgment that a central issue had been the adequacy of Mr Tinkler's claim for damage caused by the publication of the Announcement (see [34]). Of particular importance is the fact that Nicol J's order gave Mr Tinkler the opportunity to revise §§11.3.3 and/or 11.3.4 of his Particulars of Claim to make clear his case on harm/damage. The Judge ordered him to give Further Information about his case that had been sought by the Defendants on this issue. In light of this, I am satisfied that, since at least 8 May 2019, Mr Tinkler has been well aware that the Defendants have been challenging the adequacy of his case on the harm or damage caused by the publication of the Announcement. I am also satisfied that the Court has given Mr Tinkler the fullest opportunity to advance his best case.
22. On 28 June 2019, Mr Tinkler duly served his Amended Particulars of Claim in the Malicious Falsehood Action pursuant to Nicol J's Order. Then, on 10 September 2019, by consent, Mr Tinkler served Re-Amended Particulars of Claim. The principal effect of these re-amendments was that Mr Tinkler abandoned his defamation claim in respect of the Announcement, leaving only the claim for malicious falsehood in respect of the Malicious Falsehood Meaning."
"70. Issue A is whether Mr Tinkler had destabilised the board of Stobart at a crucial time for the business and whether the Defendants held the view that he did at the relevant time. This is Malicious Falsehood Meaning (a), which Mr Tinkler contends is false (see §§8.1-8.2 Re-Amended Particulars of Claim): he did not destabilise the board. The Defendants contend that this meaning is objectively true. Separately, even if Mr Tinkler established the falsity of this meaning, he would have also to establish that it was published maliciously. As Malicious Falsehood Meaning (a) has been ruled to be an expression of opinion, Mr Tinkler has to establish that the relevant Defendant, at the time the Announcement was published, did not actually hold the opinion that Mr Tinkler had destabilised the board (see [16] in the Meaning Judgment and [19] above)).
71. Resolving this issue in the Malicious Falsehood Action would involve relitigating a significant part of the Stobart Action and would inevitably lead to a position where Mr Tinkler would be inviting the Court to make findings of fact contrary to the facts found in the Stobart Action. To that extent, it would involve a collateral attack on the decision in the Stobart Action. To take the clearest example, Mr Tinkler's case in the Malicious Falsehood Action on Issue A is that he "had not destabilised the board at a crucial time for the business" (§8.1 Re-Amended Particulars of Claim). In the Stobart Judgment, Mr Tinkler was found to have "foment[ed] shareholder dissatisfaction" [735] and engaged in "covert action .... [not] acting in the best interests of [Stobart]" which "had a destabilising effect upon [Stobart's] management" [740] and led to "a situation of chaotic destabilisation within [Stobart] that Mr Tinkler had brought about" [777]. To succeed on the issue of falsity in the Malicious Falsehood Action, Mr Tinkler would be asking the Court to make a finding contrary to the finding made by HHJ Russen QC in the Stobart Action. In addition, on the issue of malice (the state of minds of the Defendants), and whether, at the date of publication of the Announcement, they held the opinion that Mr Tinkler had destabilised the board of Stobart at a crucial time for its business, to succeed in the Malicious Falsehood Action, the Court would again have to be invited to make findings contrary to findings in the Stobart Action. HHJ Russen QC found that the Four Directors: "… were justified in believing they were facing the start of an attempted coup" [777] and "considered that [Mr Tinkler's] challenge to Mr Ferguson… was destabilising [Stobart]" [792]."
(1) The Claimants allege that the 29 May RNS falsely portrayed Mr Tinkler in a negative light and that Stifel produced it knowing that it was "partially false and misleading": see paragraphs 39.1 to 39.3 and 79.2. But the only particulars of this allegation are that the announcement was "referring to challenges with C1 which were not germane": see paragraph 39.3. The Claimants do not plead the specific words in the 29 May RNS which were intended to portray Mr Tinkler in a negative light. Nor do they plead why the relevant words were untrue.
(2) In my judgment, this is not a proper pleading of an allegation of fraud. The specific words upon which the Claimants rely should have been pleaded and particulars of falsity given. Further, if the words relied upon are statements of opinion, then the particulars of falsity must include proper particulars of the allegation that Stifel did not honestly hold the relevant belief. The absence of proper particulars of an allegation of fraud would be sufficient to justify striking out the allegation. But in the present context, the difficulty in making sense of the allegation is compounded by the fact that the 29 May RNS has been the subject of a number of earlier judicial decisions.
(3) The source of the words quoted in paragraph 39.3 is not identified and they appear to have been lifted from the Russen Judgment itself. The judge set out the relevant challenges and the way in which they were presented at [270] to [273]. He reached the conclusion that the 29 May RNS was inflammatory because it set out a list of challenges which Mr Tinkler posed but "which were not really germane to this key issue for the shareholders' vote": see [789]. But he did not find that Stifel had made up or concocted any of those challenges or that Stifel had presented them in a way which involved statements of fact which were false. He simply held that it was gratuitous and unnecessary to refer to them.
(4) Furthermore, in the Meaning Judgment, Nicklin J decided that defamation meaning (a) was factual and not defamatory, that defamation meanings (b) and (c) were expressions of opinion and only defamation meaning (c) was defamatory of Mr Tinkler but was not sufficiently serious to be harmful to his reputation. Nicklin J also decided that malicious falsehood meaning (a) was a matter of opinion and that the burden was upon Mr Tinkler to prove that the Four Directors and Mr Laycock did not genuinely hold the opinion that "he had destabilised the board of Stobart at a crucial time for the business" and also that they had published these words maliciously. In substance, therefore, Nicklin J held that the only defamatory words in the 29 May RNS were expressions of opinion rather than fact.
(5) It is unclear from the Particulars of Claim whether the Claimants accept that they are bound by Nicklin J's judgment in relation to the meaning of the 29 May RNS because they do not plead the words upon which they rely or why they are false. But if they had intended to argue that the announcement was untrue because it went wider than defamation meaning (c) or malicious falsehood meanings (a) and (b), then this would be a collateral attack on Nicklin J's findings. Mr Tinkler appealed those findings and the Court of Appeal dismissed his appeal.
(6) However, if the Claimants accept those meanings but intend to argue that the Four Directors did not honestly believe that Mr Tinkler had destabilised the board of SGL at a crucial time for its business, then in my judgment, that is a collateral attack on the Russen Judgment for the reasons which both Nicklin J and the Court of Appeal have given. It is in substance an attack on His Honour Judge Russen QC's findings of fact (i) that Mr Tinkler had a destabilising effect on SGL's management, (ii) that the Four Directors genuinely believed so and (iii) that they acted in good faith and in the belief that they were acting in the interests of SGL when they issued it: see [740] and [792].
(7) Finally, both Nicklin J and the Court of Appeal were concerned that the overlap between the Defamation Claim and the 2018 Claim was not complete because of meaning (b). But that issue does not arise in the present case because the Claimants have not pleaded and do not rely on malicious falsehood meaning (b) in the Particulars of Claim. Nor do they allege that the relevant words were false.
(ii) The Panel submissions
(1) The submissions gave the impression that Stifel made them acting as SGL's broker rather than on behalf of Invesco and failed to mention this fact or concealed the involvement of Invesco and Jones Day: see paragraphs 40.3 and 40.5.
(2) Mr Tinkler was acting as a member of a concert party to exert control over SGL: see paragraph 40.4.
(3) Cenkos had resigned as SGL's broker because of a conflict of interest when it had resigned over the terms of the 29 May RNS: see paragraph 40.7.
(4) The board was required to address a number of challenges posed by Mr Tinkler in the recent past as set out in the 29 May RNS: see paragraph 40.8.
(5) Mr Laycock was on sick leave: see paragraph 40.9.
"71. In July 2023, a consultation took place regarding the proposed changes to Rule 21 of the Takeover Code on frustrating actions, and certain changes were implemented on 11 December 2023. When considering what representations to make as part of the consultation process in mid 2023, I revisited the additional materials which I had obtained in 2022. This allowed me to gain a fuller understanding of the events in this case. Based on this review, I submitted observations to the Panel in July 2023 and further submissions since that date up to December 2023 and indeed have since been interviewed by the Takeover Panel in November 2024, and have provided further written submissions on 27th February 2025.
72. Although I had indicated the possibility of a claim against IAML in correspondence in December 2020 and March 2021, this correspondence indicated that IAML's role ought to be investigated further. As Ms. Sutcliffe's statement indicates, I did not send a letter of claim at this stage. The reason for this was that I was not yet in a position to do so. Rather, I was not in a position to do so until after the Fraud Claim had concluded, and indeed after undertaking the further review of additional documentation in 2023, as I set out above."
"Q. Well, I'm going to come on and look at what you did as well, but let me just conclude this. You brought in Mr Woodford into this idea of getting rid of Mr Ferguson for this benefit, you brought in Mr Wood and Mr Day as presenting a credible front for your planned coup. A. Definitely not. It was Mr Wood and Mr Coombs decided to put their name forward in the press on the 25 May RNS to say that if Mr Ferguson were not re-elected they would stand down, and that was supported by Invesco, and Invesco had hands all over this. The involvement -- they've been involved with David Arch, the emails that I've seen through disclosure discuss me -- an investor like Invesco would even offer support with lawyers to go to the takeover panel to actually get the takeover panel to go to the takeover panel to actually get the takeover panel to say that we were going to be a concert party was ridiculous, I thought."
(iii) The share transfers
(v) The removal of Mr Tinkler
(vi) The sale of shares
"67. I understood at the hearing that you fully understood the importance of these emails and My Lord even referred to the 2 million shares been sold to friendly hands. Reference (CB4 Tab 4 Pl05B-Pl06E] 68. I am disappointed that My Lord, did not even refer to this evidence which I say clearly demonstrated the Dishonest Assistance of Rosenblatt, when I now know that the spreadsheet that Mr Leiper handed to Judge Russen to persuade the judge that the voting was correct, was simply untrue, and known to be untrue by Rosenblatt. This My Lord is clear evidence of Conspiracy, which undermined the credibility of both Mr Ferguson and Mr Brady."
(vii) The AGM vote
"In relation to the transfer of shares to the EBT and the manner in which he chose to exercise proxy votes at the AGM, he clearly relied upon legal advice which he believed supported his position. Whether or not good faith on the part of a director and a belief that he is acting in the best interests of the company are by themselves sufficient to put the relevant action beyond the scrutiny of the court is a legal question to be explored further, but it was clear to me from Mr Ferguson's evidence that he genuinely believed he had the Company's best interests at heart."
"It is now revealed from the disclosure, emails from the Second Defendant, confirms this is what our largest shareholder wanted. In evidence, both the Second and Third Defendant confirmed this is what our largest shareholder wanted. Furthermore, had disclosure been provided, it would have identified the frustrating actions being undertaken, and the misuse of the powers of the directors for improper purpose. It would also have identified the issues in respect of the "Over Votes" and voting Proxy votes contrary to the provisions set out under Section 327 of The Companies Act 2006, and The Companies (Guernsey) Law 2008. This would have rendered the votes as being void, and the outcome, being the Chairman not validly re-elected at the AGM [P,216]."
(viii) Dishonest assistance
(4) Causation
"190. Ultimately, as referred to in paragraph 127(iii) above, having originally denied that there was any such plan or strategy, under cross examination Mr Brady accepted that what he had said to this effect in paragraph 57(k) of his witness statement was not correct. I am satisfied that the evidence is to the effect that, following Mr Soanes's resignation, Esken did determine that it should seek to get out of, or disentangle itself from, the Management Agreement if it could do so given the obligation to pay an ongoing Retainer Fee for a considerable period of time. However, the evidence is to the effect that, at that time, it was unable to satisfy itself that it had the grounds to terminate the Management Agreement, and so embarked on a plan or strategy of effectively sitting back and seeing whether or not SCL was capable of performing its obligations under the Management Agreement, with a view to terminating the Management Agreement when and if circumstances permitted.
191. Further, as I have concluded in paragraph 130 et seq above, Mr Coombs' position, following Mr Soanes's departure, was that he did not, in reality, want the Management Agreement to work, and wished to "untangle", as he put it, Esken therefrom, such that he did not thereafter do anything to help to make the Management Agreement work, and sought to make SCL's life more difficult."
"194. However, I agree with a submission made by Mr Leiper that Esken's motives are, as such, irrelevant if, in fact, circumstances arose in which Esken was entitled validly to terminate the Management Agreement."
"201. Thus, in short, I do not consider that the plan or strategy that I have found was adopted by Esken, of itself, provides an answer to Esken's claim that there were breaches of the Management Agreement that entitled it to terminate the latter pursuant to clause 8.2.3, or that it was open to Esken to terminate pursuant to clause 8.2.2 on the ground that SCL had ceased to carry on its business or substantially the whole of its business, if the facts established that to be the case. However, it might explain why more was not done or achieved by SCL, and thus might potentially excuse certain conduct that might otherwise been regarded as amounting to a breach of the Management Agreement."
"207. I am satisfied that, in these circumstances, Esken was entitled to serve the Termination Notice pursuant to clause 8.2.2 thereof, and that the effect thereof was to terminate the Management Agreement as at 12 March 2019."
(5) Conclusions
VIII. CPR Part 31.22
"78. When preparing my Particulars of Claim, I was careful to base my pleaded claim only on documents that have been referred to in public.
79. Despite having access to my initial disclosure, I note that the Applicants have not identified a single document which they suggest has not been referred to in Court before, but instead the Applicants appear to seek to reverse the burden on me to show otherwise, in a way which I consider to be inappropriate.
80. It is difficult to address the points which the Applicants seek to raise when the Applicants have not listed particular documents which they suggest I have used when I ought not to have done. If the Applicants later identify particular documents, I am happy to respond further.
81. However, for the purposes of this statement I note that a large number of documents were either read to or reviewed by the Court or referred to at hearings held in public both during the course of the Fraud Trial and also, more pertinently, in the hearing of the strike-out application in the Conspiracy Claim. I am not aware of having used documents for the purpose of bringing the Current Claim which have not been either read to or by the Court, or referred to, at a hearing which has been held in public."
(1) The ET Claim
(2) The Fraud Claim
(3) The Conspiracy Claim
(4) The Present Claim
(5) Conclusions
IX. Disposal