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||Neutral Citation Number:  EWCA Civ 564
||Case No: A3/2013/1178
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE PELLING QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LADY JUSTICE GLOSTER
LORD JUSTICE CHRISTOPHER CLARKE
|| (1) WILLIAM ANDREW TINKLER
(2) TREVOR HOWARTH
||- and -
Mr Peter Elliott appeared in person
Mr Charles Hollander QC (instructed by Squire Sanders UK LLP) for the Appellants
Hearing dates: Monday 18th November 2013
and with further written and email materials being received on:
20/11/2013, 21/11/2013, 22/11/2013, 23/11/2013, 27/11/2013, 29/11/2013, 02/12/2013, 12/01/2014, 30/01/2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lady Justice Gloster :
- This is an appeal against the decision of HHJ Pelling QC, sitting as a judge of the High Court, given on 11 April 2013 in claim number 3 MA 90033 ("the 90033 proceedings"), which were issued on 23 January 2013. By his judgment HHJ Pelling QC gave permission to the claimant, Peter Elliott, ("Mr Elliott") to bring committal proceedings against the defendants, William Andrew Tinkler ("Mr Tinkler") and Trevor Howarth ("Mr Howarth") (collectively "the appellants") in relation to seven out of fifty-eight proposed contempt allegations ("the seven contempt allegations"). Leave to appeal was given on paper by Lewison LJ on 22 May 2013. The 90033 proceedings are one aspect of lengthy litigation involving Mr Elliott and the appellants and certain companies with whom they are associated. Some understanding of the background is necessary for the purposes of the determination of this appeal.
- Mr Elliott is an experienced helicopter pilot who was retained to provide aviation services to W.A. Developments International Ltd ("WADI") until he ceased to provide those services in March 2007 in circumstances of acrimony. WADI is connected to the Stobart group of companies ("the Stobart Group"), which is a publicly quoted group. After he left WADI, Mr Elliott brought various actions against Mr Tinkler, the chief executive of the Stobart Group and a director of WADI, WADI and other individuals and companies connected to WADI and the Stobart Group ("the Stobart parties"). As appears from certain materials which Mr Elliott himself has provided, he has historically suffered from stress, depression and other mental health issues which he claims have been brought about or aggravated by his litigation with the Stobart parties and others. He appears to have acted as a litigant in person in most, if not all, of the litigation relevant for the purposes of this appeal. He appeared in person on the appeal itself.
- A detailed factual account of the relevant history is set out in paragraphs 5 to 19 of HHJ Pelling QC's judgment dated 11 April 2013 ("the judgment") and in the various earlier judgments to which he refers. For the purposes of this appeal I merely summarise the salient facts.
- After his engagement with WADI terminated, Mr Elliott made a complaint to the Civil Aviation Authority ("CAA") alleging that the Stobart parties were conducting unlawful flying operations by permitting aircraft owned by WADI to be chartered to other related companies.
- The CAA conducted an investigation over many months and interviewed a large number of witnesses. In particular, the CAA investigator, Mr Daniel Crawley, interviewed Mr Tinkler at a meeting on 9 July 2007. Mr Crawley subsequently wrote a letter to Mr Tinkler and WADI stating
"During the meeting you made some unsolicited remarks. I did not interrupt or caution you and told you what you said would not be used in evidence unless you wish. The reason I let you continue was to establish if you and your solicitor had examined the law …….."
The letter also set out a précis of various allegations being made by Mr Elliott and informed Mr Tinkler that:
"At the conclusion I will offer you an interview. Any such interview will be conducted under the guidelines of the Police and Criminal Evidence Act. It will be under Caution at a location and time of your choice. In the meantime you are at liberty to write a letter to me with advice and guidance of your lawyers. I must caution you though that you do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence."
- After a lengthy investigation into the facts the CAA wrote to both WADI on 6 February 2008 (and to Mr Elliott on 26 March 2008 in similar terms) stating:"
As you are aware the CAA has been investigating allegations that [WADI] had been involved in the operation of two aircraft …. in the conduct of public transport operations without the permission of the Secretary of State in breach of Article 138(1) Air Navigation Order 2005.
Following a long and detailed investigation by Mr Crawley, a CAA Principal Investigating Officer, a case file was submitted to our lawyers. After consideration, an assessment has been made that there is insufficient evidence of a breach of Air Navigation legislation to provide a realistic prospect of conviction. Therefore our files on the matter are now closed."
- Mr Elliott was not satisfied with this decision and on 8 November 2010 sent a pre-action protocol letter threatening the CAA with judicial review of the decision not to prosecute, and seeking a mandatory order that they prosecute, although he ultimately did not proceed with the application. The pre-action protocol letter was also addressed to the Chief Constable of Cumbria Constabulary and to the CPS. Mr Elliott threatened judicial review against them as well on similar grounds. He also threatened to challenge the CAA's refusal to comply with his Freedom of Information Act request for the CAA file.
- Previously, on 13 July 2007 a separate property dispute between Mr Tinkler and Mr Elliott had been settled by a Tomlin order ("the Tomlin order") in proceedings 7MA30191. This included an undertaking by Mr Elliott directly to WADI not to repeat defamatory allegations he was making about Mr Tinkler and WADI. The undertaking was in the following terms:
"UNDERTAKING BY THE CLAIMANT TO W.A. DEVELOPMENTS INTERNATIONAL LIMITED
The Claimant provides the following Undertaking provided that he is not subject to any defamatory or slanderous statements coming to his attention from the Defendant or his companies. If the Claimant does receive knowledge of such statements he will put into writing to the Defendant his concerns and ask for a retraction within 7 working days of such statements. If he does not receive such a retraction then the Claimant is at liberty to defend himself as he seems fit in the circumstances.
I, PETER ELLIOTT, on behalf of myself, my servants, agents or howsoever (to which all reference to "I", "myself" or like expressions in these undertakings refer), UNDERTAKE FROM THE DATE HEREOF:
A. that I shall not, whether by myself or by procuring, counselling or encouraging others to do so, make, permit, repeat or cause to be repeated, any allegation whatsoever to any third party, whether directly or indirectly, in whatever form or medium howsoever, whether orally or in writing (and if in writing in any medium whatsoever, including any electronic form):
a. that W.A. Developments International Limited ("WADI"), any associated company or firm, or their respective directors, employees or agents or howsoever, have acted in respect of the operation of any or all aircraft (be they fixed wing or otherwise), in a manner which is in breach of any statutory or other regulatory requirements of either the United Kingdom or the United States of America, or any other country, and/or which is otherwise contrary to the law of any country, save as I may be required to do so by compulsion of law.
b. is otherwise defamatory of W.A. Developments International Limited, any associated company or firm, its directors, employees, servants or agents or howsoever;
c. with the intention of causing harm to the legitimate financial business interests of W.A. Developments International Limited, any associated company or firm, its directors, employees, servants or agents or howsoever.
B. To keep the facts of this dispute, this settlement and the terms of the settlement confidential and not to repeat the same to any third party without the express written permission of WADI and signed by a director save that I shall be at liberty, in answer to a specific question concerning this dispute, to respond that it has been settled amicably between the Claimant and the Defendant.
C. To repeat these undertakings to a court of competent jurisdiction if required by WADI to do so.
These undertakings are given in full and final settlement of any previous allegations I made or may have made of a like nature to those in paragraphs A(a), (b) and (c) above."
The proviso at the beginning of the undertaking ("the proviso") has, as appears below, given rise to controversy between the parties.
- After the Tomlin order, Mr Elliott then started a series of actions against Mr Tinkler, WADI and other individuals or companies connected to WADI or the Stobart Group. These included:
i) defamation proceedings 8NE30065 brought by Mr Elliott in the Newcastle District Registry repeating allegations contained in the Tomlin order which were issued on 18 September 2008 ("the Newcastle proceedings"); these were struck out by DJ Atherton on 21 April 2009 on the basis that they were an abuse of process because they were being used for an improper purpose;
ii) proceedings HQ 09 D04487 brought by Mr Elliott on 7 October 2009 claiming £28.42 million damages, which were struck out by Master Leslie as being "totally without merit" on 10 March 2010;
iii) contempt proceedings 9MA 91624 brought by Mr Elliott on 30 October 2009, which were struck out by HHJ Tetlow as an abuse of process on 13 November 2009.
- Since then, in various proceedings against the Stobart parties, Mr Elliott has repeated his allegations that the Stobart parties have acted in connection with the operation of aircraft in a manner which was in breach of statutory or other regulatory requirements of either the United Kingdom or the United States of America. He characterises these allegations as allegations of "aviation criminality".
- On 13 November 2009 HHJ Tetlow made an extended civil restraint order against Mr Elliott. This was converted into a general civil restraint order by HHJ Tetlow on 15 March 2010. It had a duration of two years.
- Mr Elliott was made bankrupt on 26 August 2009 for non-payment of legal costs orders made against him, pursuant to a statutory demand served on 3 April 2009. The bankruptcy was annulled in 2012 on the basis that Mr Elliott had a counterclaim in proceedings which had been started subsequently, and which he said exceeded the sum due in respect of costs. Following the date of the annulment, that counterclaim was, however, struck out.
- In the meantime, WADI, certain companies in the Stobart Group and Mr Tinkler (collectively "the Stobart parties") had brought proceedings against Mr Elliott to prevent him from making damaging defamatory allegations against them, which they alleged were in breach of the Tomlin order.
- Thus on 24 November 2008 Mr Tinkler and WADI issued proceedings 8MA40076 in the Manchester District Registry (to enforce the undertaking contained in the Tomlin order) ("the Manchester proceedings"). They had made an application and obtained interim without notice injunctions from HHJ Hegarty on 21 November 2008, on the basis of oral submissions made by counsel, subject to an undertaking to confirm the material presented to the judge in a witness statement. On 24 November 2008 Mr Tinkler in a witness statement of that date ("the 24 November 2008 witness statement") confirmed the evidential material which had been presented to the judge orally.
- The action came on for trial on 15 March 2010, but Mr Elliott did not attend. Mr Elliott had said before the hearing he was unable to attend through illness but had given little information in support. (Subsequently he asserted that he had sought to commit suicide a few days before and thus was indeed incapacitated). HHJ Tetlow declined to adjourn the trial and granted a final injunction restraining Mr Elliott as sought by the Stobart parties ("the Tetlow injunction").
- Mr Elliott thereafter sought to appeal against the Tetlow injunction made against him at that trial. The Court of Appeal (first Sir Richard Buxton on paper and Arden LJ at a subsequent oral hearing for permission to appeal) refused leave to appeal. Mr Elliott then sought to set aside the judgment under CPR 39.3(3) on the grounds that he had had a good reason for not attending. In a judgment given on 15 March 2012, Sharp J acceded to this application. But on 10 October 2012 the Court of Appeal (Maurice Kay, Munby and Lewison LJJ) allowed the Stobart parties' appeal and restored the Tetlow injunction.
- In the period when the Stobart parties were unprotected by the Tetlow injunction (between March 2012 and October 2012, i.e. between the decision of Sharp J and the restoration of the injunction by the Court of Appeal) further proceedings 2MA 90133 were started by the Stobart parties in June 2012 to obtain injunctive relief against Mr Elliott in relation to allegedly defamatory statements on a website started by Mr Elliott called stobartwhistleblower.wix.com ("the website proceedings"). An injunction was obtained on 15 June 2012. Mr Howarth, the Group Legal Director of the Stobart Group, made a witness statement dated 12 June 2012 in support of the application. These proceedings were discontinued by the Stobart parties in January 2013 in circumstances where the Tetlow injunction had been restored. Somewhat surprisingly (since as a result of the Court of Appeal's decision restoring the Tetlow injunction it had been in place (or should have been in place) throughout the period from 15 March 2012 to January 2013), HHJ Pelling QC then ordered an inquiry into any damage suffered by Mr Elliott as a result of this injunction and gave directions for the hearing of that inquiry. However, according to the appellants, Mr Elliott owes the Stobart parties approximately £150,000 of unpaid costs bills, and they claim that, if he is awarded any damages, it is likely that there will be a pro tanto set-off. After the hearing of the appeal we were informed that, by order dated 29 January 2014, HHJ Platts had struck out Mr Elliott's claim for damages pursuant to the cross-undertaking and had ordered him to pay the Stobart parties' costs of the inquiry incurred after 16 January 2013.
- Mr Elliott did not comply with the various injunctions ordered against him. As a result, there were three contempt applications brought against him by the Stobart parties. The first was dismissed by MacDuff J as a result of an issue as to service of the order. MacDuff J said that he was satisfied on the balance of probabilities as to service before breach, but not beyond reasonable doubt and accordingly dismissed the application. As to the other two:
i) on 10 June 2009 HHJ Main found Mr Elliott guilty of contempt of the Tetlow injunction and sentenced him to three months' imprisonment; and
ii) on 20 October 2011 HHJ Pelling QC found Mr Elliott guilty of contempt of the Tetlow injunction and sentenced him to three months' imprisonment but suspended the sentence.
- HHJ Pelling QC has recently struck out two further claims made by Mr Elliott against the Stobart parties:
i) on 7 February 2013 he struck out a claim by Mr Elliott to set aside the Tetlow injunction on grounds of fraud;
ii) on 11 April 2013 he struck out a Counterclaim by Mr Elliott in the stobartwhistleblower.wix.com action seeking tens of millions of pounds damages for a variety of causes of action including perverting the course of justice, fraud, malicious falsehood and abuse of process.
- On 11 April 2013, on the same day that he gave Mr Elliott leave to proceed in respect of the seven contempt allegations the subject of this appeal, HHJ Pelling QC made a General Civil Restraint Order against Mr Elliott for a period of two years.
Mr Elliott's application to bring contempt proceedings
- By an application made in a Part 8 claim form in the 90033 proceedings, which were issued on 23 January 2013, Mr Elliott sought permission to bring 25 contempt allegations against Mr Tinkler, Mr Howarth and others pursuant to CPR Part 81. 13 and 14. He then made further applications as follows:
i) on 8 February 2013 Mr Elliott sought to add a further eight allegations of contempt to his application for leave;
ii) on 10 February 2013 Mr Elliott sought to add a further 12 allegations of contempt to his application for leave; and
iii) on 28 February 2013 Mr Elliott sought to add a further 13 allegations of contempt to his application for leave.
(Although the various allegations were numbered 1-59, there was in fact one number which did not have an allegation so there were in fact 58 allegations.)
- The judge heard the application for leave in relation to all the allegations on 20 and 21 March 2013. On 11 April 2013 he dismissed all except seven of them. He gave permission for Mr Elliott to proceed to a hearing of the contempt application in relation to allegations 3, 4, 8, 28 and 40 as against Mr Tinkler, and in relation to allegations 13 and 19 against Mr Howarth. The appellants appeal against that order.
The parties' submissions on the appeal in overview
The Stobart parties' general submissions in summary
- Mr Charles Hollander QC, who appeared on behalf of the appellants, submitted that the judge was wrong, both in principle and on the specific facts relating to the individual allegations, to allow Mr Elliott to proceed with his committal application. In principle, he submitted, there were a number of reasons why, looking at the matter generally, the judge was wrong to have granted permission to proceed.
- (1) Mr Elliott was not an appropriate guardian of the public interest: Contempt proceedings were brought in the public interest and accordingly the court was obliged carefully to consider whether it was appropriate that the person bringing contempt proceedings should act as the guardian of the public interest. If the court considered that the applicant was not an appropriate guardian of the public interest, it had to consider (a) whether that was a reason to decline to give permission at all or (b) to decline to give permission, but to refer the matter to the Attorney General to consider whether to bring proceedings: see Sectorguard v Dienne and KJM Superbikes v Hinton. That was a point emphasised by Lewison LJ in giving leave to appeal.
- It was hard to see how Mr Elliott could possibly be regarded as an appropriate person to bring public interest proceedings. In deciding to give leave the judge failed to consider this issue and, in particular, failed to take into account highly important matters relating to Mr Elliott's motive for seeking to bring contempt proceedings. Thus the judge failed to consider that the bringing of contempt proceedings was part of Mr Elliott's agenda
i) to gain revenge for the fact that Mr Elliott himself had been imprisoned for contempt at the behest of the Stobart parties; that his motive was revenge was clear from his submission that, as he was imprisoned for three months, the Stobart parties should likewise receive at least that sentence;
ii) to make as much trouble for the Stobart parties as possible, and to cause them damage;
iii) to pursue by collateral means his agenda of trying to reopen a decision by the CAA not to prosecute the Stobart parties in relation to allegations made by Mr Elliott that they were conducting unlawful flying operations by permitting aircraft owned by WADI to be chartered to other related companies;
iv) to pursue by collateral means his efforts to reopen the Tetlow judgment, in relation to which there had already been applications by him to appeal out of time (application for leave to appeal dismissed by Sir Richard Buxton on paper and Arden LJ orally), to set the judgment aside because he was not present (dismissed by the Court of Appeal) and to set aside the Tetlow judgment for fraud (struck out by Judge Pelling).
- The judge also failed to pay any or any sufficient regard to the fact that Mr Elliott had shown himself to be someone who paid no regard to court orders but, on the contrary was prepared to flout the processes of the court in the most serious way. The judge failed to have regard to the fact that, on the only one occasion when Mr Elliott had given oral evidence in the course of proceedings against the Stobart parties (namely at his own committal hearing before MacDuff J), MacDuff J had found him to be a thoroughly untruthful witness.
- The judge further failed to have sufficient regard to the extent of the wild and unsubstantiated allegations which had been, and were currently being made, by Mr Elliott against not only against the Stobart parties but also against a wide range of other individuals. Thus for example in his most recent batch of contempt allegations, the majority of which had been dismissed, Mr Elliott alleged that the senior officer in charge of Cumbria Constabulary procured the termination of an investigation into the Stobart Group (which was based on a complaint by Mr Elliott himself) as a result of his corrupt relationship with the Stobart Group. Indeed, when he appeared before Carlisle Magistrates Court charged with assault (in a matter not connected to the Stobart proceedings) Mr Elliott told the magistrates that he was before them because of an abuse of process because of police corruption originating from the Chief Constable of Cumbria police and his relationship with Mr Tinkler. In the various Stobart proceedings Mr Elliott has made extremely serious allegations against Mr Tinkler, Mr Stobart, Mr Howarth, and various Stobart companies. He has made complaints against many of those involved in litigation against him including complaints to the Solicitors Regulation Authority against Squire Sanders (the current solicitors for the Stobart parties) and their predecessors, Judge & Partners, and threatened to report Mr Sephton QC, leading counsel previously acting for the Stobart parties. He has alleged that Mr Tinkler is guilty of blackmail, fraud, and has alleged that he, Mr Elliott, has legitimate fears for his safety as a result of Mr Tinkler's alleged connections with the Ukrainian mafia and the IRA. He had made criminal complaints about the Stobart parties to the Serious Fraud Office, the CAA, Cumbria Constabulary, Cheshire police and Manchester police (or, in this last case, so he claimed in court). He had sought to misuse the processes of the court for his own benefit. Thus he made serious allegations against the Stobart parties in 8NE30065 and then sought to circulate court documents making those allegations to important customers of the Stobart group, to employees and to the members of Carlisle City Council. DJ Atherton struck out the claims as an abuse of process in the light of Mr Elliott's conduct in disseminating what the District Judge referred to as statements of case containing "scurrilous material".
- Nor did the judge pay any, or any sufficient regard, to the fact that in finding Mr Elliott guilty of contempt, HHJ Main said:
"I have absolutely no doubt therefore and I am certainly satisfied on the criminal standard of proof, the Defendant engaged in repeated defamatory behaviour in the context of these several allegations made in the disclosures to both Mr Bates and Mr Keys with the specific intention of causing harm to and interference with the legitimate business interests of WADI and its associates and directors, employees and others."
- (2) The judge failed correctly to apply the test for bringing contempt proceedings to the facts of the case: The judge correctly set out the legal framework at  of his judgment. He had been referred to Malgar v RE Leach Engineering at 396-7, 400, KJM Superbikes v Hinton at , , [16-20] and most recently Berry Piling Systems Ltd v Sheer Projects Ltd, the last of which he referred to in his judgment. Those authorities showed that, in order to give leave the court must be satisfied in relation to each allegation that:
i) there was a strong prima facie case that the allegation would be proved beyond reasonable doubt;
ii) the bringing of proceedings was in accordance with the public interest, proportionality and the overriding objective.
- Whilst the judge recited the test correctly, he failed to apply the test correctly to the facts of the case. He could not have been satisfied that there was a strong prima facie case nor that any of the allegations would be proved beyond reasonable doubt, nor that the bringing of proceedings was in accordance with the public interest, proportionality and the overriding objective.
- (3) Delay: A number of the allegations were very old. The judge did not give sufficient weight to the delay in bringing the application for committal. The fact that a claimant had delayed in bringing contempt proceedings was a significant factor which the court should take into account; see Barnes v Seabrook .
- (4) The innocent nature of the appellants' errors: There had been many witness statements served in the course of the various proceedings by Mr Tinkler and Mr Howarth. There was no doubt that errors had on occasion been made. In some cases the court might regard the errors as significant. However, there was all the difference in the world between an error and a deliberate lie. The judge, in deciding whether a strong prima facie case had been made out in relation to each allegation, never stood back and considered whether any errors were deliberate or accidental. In so deciding, he should have considered what the motive might have been for a deliberate lie. That was particularly so in circumstances where the judge identified the error by documentary evidence which, if the deponent had been aware of it at the time he had made the statement, would have made it obvious that any false statement would rapidly be shown to be incorrect. The judge failed to conduct an adequate exercise in this respect.
Mr Elliott's general submissions in summary
- As I have already mentioned, Mr Elliott was unrepresented on this appeal. Apart from the oral argument which he presented at the hearing, we have carefully considered the various written submissions and materials which he submitted to the court both prior to, during and after the hearing. The fact that I do not expressly refer to all of those materials does not mean they have not been taken into account in arriving at my conclusion.
- The following is a summary of Mr Elliott's main submissions. Mr Elliott submitted that the appeal should be dismissed as being totally without merit and that HHJ Pelling QC's decision should be upheld for the reasons which the judge gave. He pointed out that the judge was extremely diligent and had a comprehensive grasp of the entirety of the proceedings as between Mr Elliott and the Stobart parties, whereas this court had a view from only a small window onto one small area of the proceedings. He submitted that on many occasions the judge had found against him (i.e. Mr Elliott) and had frequently refused applications which he had made. Therefore the fact that the judge had, on this occasion, rightly allowed Mr Elliott's committal application to proceed in relation to certain specific allegations, should be given considerable weight.
- The appellants' tactics were to deploy smear and innuendo in order to distract this court from the real issues. Their attempts to engage in character assassination of Mr Elliott were oppressive.
- The appellants' argument that, due to a lapse of time, they could avoid a trial was misconceived. The "massive lies" which the appellants had told had been the subject of many hearings over five years, so that the detail was still fresh in both sides' minds. In any event, such lies had caused catastrophic damage to Mr Elliott, and his whole life, mental health and career had been destroyed by the Stobart parties' actions. For that reason, these committal proceedings should proceed.
- The appellants' argument that "little" lies were acceptable to the court, and did not attract penal sanction, was ill-founded. In this case the justice system was completely subverted for many years, not just once but twice in relation to two unlawful injunctions; in those cases he had been telling the truth about their criminality and they had been lying. To have obtained ex-parte injunctions on the basis of lies was a very grave insult to the fabric of the justice system. The consequences on Mr Elliott as a result should not go unpunished. If these lies had not been told, no injunctions would ever have been granted as against Mr Elliott. There was a long history of deception by the appellants of the courts. It would be an outrage if they could yet again subvert the justice system and avoid trial.
- He was the wholly appropriate person to conduct these contempt proceedings. He had served in the British Army; he was an aviation expert and a previous examiner of law for the CAA. He knew the detail of the case inside out and most importantly of all was the victim. He had a right under article 6 of the European Convention on Human Rights to have a fair trial in relation to this matter and only the contempt proceedings against the appellants could produce that result. The judge would have been aware of the potential standing of the Attorney-General to bring the proceedings but the reality was that, under the draconian clauses of the injunctions against Mr Elliott, he would not have been able to have communicated with the Attorney-General. Whilst Mr Elliott would not object to the Attorney-General having the conduct of the proceedings, if that were to occur, he must be allowed to have the ability to engage with the Attorney-General and his Member of Parliament.
- So far as his failure to comply with the various costs orders were concerned, he did not pay "criminals who attack me". Although his assets were considerable, they had been frozen in his divorce. Indeed his ex wife and her lawyer had colluded with the Stobart parties to steal his assets from him. Moreover, his extant damages claims against the Stobart parties more than covered any costs.
- The appellants were now seeking to argue that they had not committed 6000 to 10,000 criminal aviation offences. It would be an outrage if the committal proceedings were not to proceed. Mr Elliott and all whistleblowers were entitled to have confidence that the justice system protected their position. It would wholly undermine the justice system if the court were to allow mendacious company directors unlawfully to silence truthful whistleblowers.
- The court could not undermine the factual findings of HHJ Pelling QC.
- Moreover, based upon new evidence which he had submitted, the Court of Appeal should use its discretion to increase the number of contempt charges that should go to trial; these were contempt allegations 16, 17 and 25.
- For the above reasons the court should dismiss the appeal.
The correct legal approach
- The correct legal approach to the determination of an application for permission to bring committal proceedings was not in dispute on this appeal. The judge correctly summarised the relevant and well-known principles in paragraph 23 of his judgment as follows:
"23. The approach to be adopted on applications for permission has been considered in a number of authorities. The principles that emerge are the following:
i) In order for an allegation of contempt to succeed it must be shown that " in addition to knowing that what you are saying is false, you had to have known that what you are saying was likely to interfere with the course of justice" - see Edward Nield v. Loveday  EWHC 2324 (Admin);
ii) The burden of proof is on the party alleging the contempt who must prove each element identified above beyond reasonable doubt - see Edward Nield v. Loveday (ante);
iii) A statement made by someone who effectively does not care whether it is true or false is liable as if that person knew what was being said was false - see Berry Piling Systems Limited v. Sheer Projects Limited  EWHC 347 (TCC), Paragraph 28 - but carelessness will not be sufficient - see Berry Piling Systems Limited v. Sheer Projects Limited (ante), Paragraph 30(c);
iv) Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor- see Malgar Limited v. RE Leach (Engineering) Limited  EWHC 843 (Ch), Kirk v. Walton  EWHC 1780 (QB), Cox J at paragraph 29 and Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(a);
v) Before permission is given the court should be satisfied that
a) the public interest requires the committal proceedings to be brought;
b) The proposed committal proceedings are proportionate; and
c) The proposed committal proceedings are in accordance with the overriding objective -
- see Kirk v. Walton (ante) at paragraph 29;
vi) In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective - see - Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(d);
vii) In assessing whether the pubic interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker's understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements - see KJM Superbikes Limited v. Hinton  EWCA Civ 1280, Moore-Bick LJ at Paragraphs 16 and 23; and
viii) In determining a permission application, care should be taken to avoid prejudicing the outcome of the application if permission is to be given by avoiding saying more about the merits of the complaint than is necessary to resolve the permission application - see KJM Superbikes Limited v. Hinton (ante) at Paragraph 20."
- It is not necessary for this court to revisit these authorities. The dispute on the appeal focussed on whether the judge had correctly applied them.
Discussion of the individual contempt allegations
- I turn now to deal with the individual allegations of contempt to consider whether, in allowing Mr Elliott to continue with the contempt proceedings, the judge was wrong in principle or exercised his discretion in a fundamentally flawed manner.
- The judge set out what he regarded as the relevant facts at paragraphs  to  of the judgment.
- In essence Mr Elliott's allegation is that Mr Tinkler told a deliberate and fraudulent lie in his witness statement dated 24 November 2008 in claiming that "an officer of the CAA interviewed me under caution". That witness statement was served in support of a without notice application for an injunction which had been made in the Manchester proceedings brought by Mr Tinkler and WADI against Mr Elliott to secure compliance with the terms of the Tomlin order. Paragraph 6 of the witness statement stated as follows:
"6. Mr Elliott alleged that WADI and I had acted unlawfully in relation to its aviation activities. He alleged to the Civil Aviation Authority ("CAA") that WADI had committed many breaches of the Air Navigation Order. As a result of Mr Elliott's allegations, WADI the company and I as an individual were put to much trouble and expense. An officer of the CAA interviewed me under caution. The CAA required substantial disclosure from WADI which was costly of time and resources. In the event the CAA concluded after a long and detailed investigation that it would close its files and take no further action. I produce marked "WAT 1" the letter the CAA wrote to our solicitors in this regard." [Emphasis added.]
- In fact, as was apparent from a letter from the CAA to Mr Tinkler and WADI dated 12 July 2007, the interview had not been under caution. In his witness statement dated 5 February 2013, in response to Mr Elliott's present application, Mr Tinkler accepted that this was the case. He said:
"9. At the start of the investigation by the Civil Aviation Authority ("CAA") I was interviewed by Daniel Crawley who was an officer of the CAA. At the time I understood that I was being interviewed under caution. Following my interview, my then solicitors, Pannone LLP, investigated the matter and ascertained that the interview had not in fact been carried out in accordance with the Police and Criminal Evidence Act 1984 ("PACE") and had not in fact been an interview under caution. Following that discovery Pannone LLP corresponded with Mr Crawley to supply further details he required from me. At all times I fully co-operated with the CAA.
10. I accept that the statement that I was "interviewed under caution" is inaccurate; however I did honestly believe that this was the case and there was no intention on my part to mislead the Court. I was interviewed by an officer of the CAA and following that interview I fully co-operated with the CAA's investigation into the allegations made to the CAA by the Defendant."
- In paragraph 12 of his further witness statement dated 18 February 2013 he stated:
"12. The issue of whether I was under caution or not at the time of my interview is of peripheral relevance to the purpose of my witness statement. The facts remain that I was interviewed by an officer of the Civil Aviation Authority ("CAA"), that I complied fully with the CAA's investigation into the allegations made by the Claimant and that at the conclusion of its investigation the CAA chose not to take any further action."
- Nonetheless the judge found that there was a strong prima facie case that this was a deliberate lie. Mr Elliott supports the position taken by the judge. He submits that Mr Tinkler's statement in the witness statement dated 24 November 2008 was clearly a deliberate lie on Mr Tinkler's part and that, as a result, he had deceived the court, who subsequently had to consider the grant of injunctions, into believing that he had given statements under caution to the CAA and that accordingly no aviation offences had been committed.
- I accept Mr Hollander's submission that there was no evidence whatsoever to support the judge's (erroneous) view that there was a strong prima facie case -or even a prima facie case - that this was a deliberate lie. In context, the comment that Mr Tinkler had been interviewed under caution was incidental, and wholly insignificant to the main thrust of his evidence. The fact was that Mr Tinkler had indeed had a meeting with Mr Daniel Crawley, of the CAA, which, from the content of Mr Crawley's letter of the 12 July 2007, could understandably have been regarded by Mr Tinkler as "an interview". It was in fact irrelevant for any purpose connected with the application by Mr Tinkler for an injunction in 2008 as to whether he had been interviewed by the CAA under caution or not. What mattered, as Mr Tinkler stated in his statements in connection with the present application, was that the CAA had investigated the matter extremely thoroughly, that there had been a formal investigation process which clearly envisaged that Mr Tinkler and others might well be interviewed under caution, and that the CAA had decided not to take any further action. The judge was clearly wrong in my view to conclude at paragraph 36 of the judgment:
"The facts stated were clearly material to the question whether an interim injunction should be granted and, if so, on what terms. The purpose of including it was to support the central claim that the allegation that criminal breaches of the ANO had occurred was without substance."
Indeed the fact that the CAA had not thought it necessary to interview Mr Tinkler under caution as part of the investigation supported the claim that the allegation of criminal breaches was without substance.
- Moreover there was no reason whatsoever for Mr Tinkler to have lied about this matter; it would have served no useful purpose, and could easily have been rebutted by enquiry of the CAA. He was represented by solicitors at the time and it is highly unlikely that they would have been complicit in such an error if they had had the relevant letter in mind.
- I also accept Mr Hollander's submission that to permit a committal application to proceed in relation to a peripheral allegation of such insignificance and irrelevance was not proportionate or in the public interest. Moreover the witness statement had been made in November 2008, in the Manchester proceedings, over four years before Mr Elliott had made the allegation in the context of the present proceedings. He had clearly known about the letter dated 9 July 2007 for some considerable time, and indeed in paragraph 10 of a witness statement served in the Manchester proceedings dated 30 January 2010, he had complained about a "false statement" which he said Mr Tinkler had made in paragraph 6 of his witness statement used to obtain the injunction obtained on 21 November 2008, i.e. Mr Tinkler's witness statement dated 24 November 2008 about which complaint is made in the present application. The judge clearly failed to take into account the delay in this context.
- Moreover CPR Part 81.18 requires that a committal application in relation to a false statement of truth in connection with proceedings in the High Court may only be made "with the permission of the court dealing with the proceedings in which the false statement …was made" by a Part 23 application notice in those proceedings. Although Mr Hollander did not take any point in the court below in relation to the fact that this rule had not been complied with, the rule underlines the importance of the issue of contempt being dealt with by the court which has dealt with the actual proceedings in which the alleged false statement has been made – and in those proceedings. Whilst for obvious reasons this may not always be the same judge, the fact is that the rule emphasises the importance of the application being considered in the context of the actual litigation in which the statement was made and not in a vacuum. Unlike the judge, I do not regard the rule as a mere formality.
- Accordingly the judge was, in my view, clearly wrong to permit this contempt allegation to proceed.
- The judge set out what he regarded as the relevant facts at paragraphs  to  of the judgment.
- At paragraphs 7 and 8 of his 24 November 2008 witness statement Mr Tinkler stated:
"7. Mr Elliott was interested in purchasing from me a property known as "Pinewood". When our relationship deteriorated, litigation developed in relation to Mr Elliott's proposed purchase of "Pinewood". In the course of the litigation, I was represented by Pannone LLP and Mr Elliott was represented by DLA Piper UK LLP. At length, I was prepared to compromise the litigation upon the basis that Mr Elliott ceased making what I regard as harassing and wholly unfounded allegations about me and my business activities. The litigation was compromised upon the terms of an order, a copy of which I now produce marked "WAT 2."[Emphasis added.]
8. Notwithstanding the undertaking Mr Elliott gave, he has continued to pursue his vendetta against me and my companies."
- Mr Elliott's allegation is that Mr Tinkler was referring to the allegations of "aviation criminality"; that the underlined sentence was an assertion that the allegations were "wholly unfounded"; and that this was an assertion which was untrue and known to Mr Tinkler to be untrue. He submits that Mr Tinkler's statement was deliberately made to smear the name of Mr Elliott in order to achieve a fraudulent ex parte injunction in the Manchester proceedings. He further submits that the injunction would not have been granted had the court really known of the criminal aviation activity.
- At paragraph 12 of his witness statement dated 5 February 2013, served on the present application, Mr Tinkler explained his reasons for expressing himself in those terms:
"12. This statement is an accurate reflection of what I believed at the time and continue to believe. I continue to regard the Defendant's allegations of aviation criminality against me personally and my business as being harassing and wholly unfounded. I have consistently denied the Defendant's allegations throughout the course of the proceedings between the parties. As I have previously explained the Claimants were investigated by the Civil Aviation Authority following a complaint made by the Defendant. The Civil Aviation Authority investigated the complaint fully, carrying out interviews of various employees and directors of the Second Claimant, and concluded that no further action should be taken in respect of the Defendant's complaint."
- At paragraphs 38-43 of the judgment the judge said this:
"38. In my judgment, Mr Elliott has taken the part of this sentence on which he relies out of context. The key point is that Mr Tinkler was saying that he regarded the allegations as without substance. This was an expression of subjective opinion. Thus the real question to be answered is whether Mr Elliott has demonstrated a sufficiently strong prima facie case that an honest man in the position of Mr Tinkler could not have honestly held such an opinion. In my judgment he has for the following reasons.
39. The substance of Mr Tinkler's evidence in answer is that (a) he has consistently denied wrong doing; (b) the CAA investigated Mr Elliott's allegations and concluded that no further action should be taken but (c) Mr Elliott continues to assert the truth of the allegations. In my judgment the reliance by Mr Tinkler on the decision of the CAA not to prosecute is not of itself either a sufficient or necessary basis for an assertion that the breaches of the Air Navigation Order alleged did not in fact occur or as a foundation for the claimed belief. As I have said already, the CAA concluded only that in its view there was insufficient evidence to provide a realistic prospect of conviction. In my judgment whether breaches had occurred (and were in truth known to Mr Tinkler to have occurred) has to be considered in the light of the whole of the evidence relied on by Mr Elliott.
40. Mr Elliott alleges and it was not disputed before me that (a) WADI operated a light twin jet and a helicopter, both of which were registered on the US Register, (b) that as a matter of UK Air Law, the UK owner of a foreign registered aircraft is not permitted to use it for revenue earning operations without an AOL, (c) WADI did not have such a licence and thus (d) every time WADI caused or permitted either the jet or the helicopter to be chartered to a third party a breach of the relevant provisions of the Air Navigation Order occurred. Mr Elliott maintains that Mr Tinkler and other senior WADI managers very well knew all this.
41. The evidence that Mr Elliott relies on is i) 24 invoices raised by WADI for the charter of the aircraft to subsidiaries and independent third parties for revenue totalling in excess of £435,000;
ii) a report to Mr Tinkler from Robert Muckle Solicitors sent to Mr Tinkler by that firm under cover of a letter dated 6th December 2005, concerning the operation of the aircraft that included the advice that " … under the [Air Navigation Order] 2005 … there is a general prohibition on aircraft registered outside of the UK carrying passengers or cargo in return for payment … this means that as currently structured WADI could not operate the business it intends [maximising the utilisation of the aircraft with a view to generating a profit] without breaching the terms of the ANO 2005 …", and that there must be no charging within the Group for use of the aircraft;
iii) a minute of a board meeting of WADI that took place on 13 March 2007 which is signed by Mr Tinkler and which refers to allegations made by Mr Elliott concerning illegal public transport flights in respect of which advice had been received from the FAA that some of those flights might have been contrary to FAA regulations;
iv) the letter from Mr Crawley to Mr Tinkler of 12 July 2007 that I refer to earlier in this judgment which records a statement by Mr Tinkler to the effect that he had thought he was legally entitled to charge for the use of the aircraft but appreciated that he was mistaken and had invoiced back the companies that had paid for use of the aircraft and
v) the credit notes that were all issued on 13 March 2007.
42. In my judgment this evidence establishes a sufficiently strong prima facie case that the alleged aviation offences had been committed by WADI in the period covered by the invoices – that is between not later than 23 September 2005 and not later than 13 March 2007. Although the letter from Mr Crawley suggests that Mr Tinkler was operating under a genuine misapprehension, that is not consistent with the contents of the report from Robert Muckle that was sent to Mr Tinkler direct in December 2005. Whilst 4 of the invoices predate that letter, the remaining 20 postdate it. This is not explained in the evidence filed by Mr Tinkler in answer to the application. Although Mr Elliott did not formally cite the ANO to me, the Stobart Defendants did not suggest that to charter an aircraft operated by them in the UK that was registered on the US Register without an AOL was not an offence under the ANO. Thus I conclude that a sufficiently strong prima facie case has been out.
43. Given that I am satisfied that a strong prima facie case has been made out that the relevant statement was false and was known to be false, I can readily infer that a strong prima facie case has been made out that Mr Tinkler knew that the false statement was likely to interfere with the course of justice, given that the statement was made for the purpose of maintaining his claim to the interim injunction. "
Thus the judge held that there was a strong prima facie case that this was a deliberate lie based on the evidence relied upon by Mr Elliott, namely (i) 24 invoices raised by WADI for the charter of the aircraft to others (ii) a letter from Robert Muckle solicitors in 2005 (iii) a WADI board minute dated 13 March 2007 (iv) the letter from Mr Crawley dated12 July 2007, and (v) credit notes of 13 March 2007. He considered that it would be proportionate and in the public interest for the allegation to proceed.
- Again I take the view that the judge was clearly wrong on the evidence before him to conclude that there was a strong prima facie case that this was a deliberate lie on Mr Tinkler's part. In any event, even if, contrary to my view, it could be said that there was some sort of prima facie case that Mr Tinkler must have thought in November 2008 that some of the aviation allegations were soundly based, considerations of proportionality and the public interest clearly militated in favour of stopping the allegations from proceeding.
- My reasons for this conclusion are as follows. First of all this was a subjective statement by Mr Tinkler as to his willingness to compromise the previous litigation upon the basis that Mr Elliott ceased making what he, Mr Tinkler, regarded in November 2008 as "wholly unfounded" allegations, not an objective statement of what the position actually was in relation to the aviation allegations. Second, there were a number of other allegations which Mr Elliott had made at that time about Mr Tinkler's business activities apart from the "aviation criminality" issue. For example Mr Elliott had alleged that Mr Tinkler was not a fit person to run Carlisle airport, and that a major fraud had been committed on Stobart's shareholders by Mr Tinkler. Whilst Mr Elliott asserted that Mr Tinkler "can only really be inferring and referring to the allegations of his aviation criminality", the reality was that a number of other allegations had indeed been made and all that Mr Tinkler actually said was that that Mr Elliott had been making unfounded allegations against him.
- Third, there was every reason for Mr Tinkler, a lay person not a lawyer, at that time to have regarded Mr Elliott's allegations of "aviation criminality" as "wholly unfounded". The minutes of a WADI board meeting dated 13 March 2007 record that Mr Elliott's own advice had been that the inter-group charging was not contrary to Federal Aviation Authority or CAA rules. It reads as follows:
- "Following the Board Meeting of Eddie Stobart Ltd held on 8th/9th March, the Board of WA Developments International Ltd (WADI) has had further discussions concerning Peter Elliott.
- After further investigations into allegations of illegal public transport made by Peter Elliott, and having taken advice from the FAA (Sam Lombardi), it appears possible that some of the inter-company / group charges may contravene FAA regulations.
- Under advice from an Aviation Consultant (Peter Elliott), WADI believed that this charging was not contrary to FAA or CAA rules, as the charges were to companies within the Group or with common ownership.
- The charges were made at the time to ensure that the accounting entries were correct and also to comply with the UK transfer pricing laws.
Moreover, the allegations made by Mr Elliott had been the subject of a full CAA inquiry and, in circumstances where there had been no suggestion that information was kept from the CAA, the CAA had decided that, despite the large quantities of materials supplied by Mr Elliott and the allegations made by him, there was insufficient prospect of conviction to prosecute. The material supplied by Mr Elliott to the CAA included advice given to WADI by Robert Muckle, solicitors. Against that background, the general statement by Mr Tinkler that he regarded the allegations as "wholly unfounded" was hardly a surprising one.
- Therefore, it has been decided subsequently to credit the relevant invoices and to ensure there are no further charges unless they are in line with aviation regulations."
The fact that, as the board minute reveals, there had been certain cross-invoicing issues between companies in the same ownership, which arose because relevant aircraft were registered outside the UK, is not supportive of the relevant statement being a dishonest one on Mr Tinkler's part. Mr Tinkler explained in his evidence before the judge that, since the date of his CAA interview, he had accepted that invoices were sent to other companies within the Stobart Group, and/or with shared ownership, in relation to their use of the aircraft owned by WADI. Mr Tinkler's evidence on this issue was that:
i) the invoices related to group companies or companies in shared ownership (as was clear from the board minute);
ii) the structure that was adopted was on the basis of advice from Mr Elliott himself in the course of his engagement by WADI;
iii) it became apparent after advice from the CAA that some of the inter-company charging might contravene US FAA regulations;
iv) the invoices were therefore reversed and the WADI board were notified of this and approved it;
v) the CAA accepted that the reversal of the invoices was a suitable solution;
vi) the Muckle advice represented a possible structure that was never followed.
Even if it could be argued that the statement that the allegations were "wholly unfounded" was something of an overstatement in relation to the inter-company charging issue, as the judge appears to have concluded, in the circumstances, and, in particular, in the light of the CAA decision, the judge was wrong in my view to conclude that there was a strong prima facie case that Mr Tinkler's statement of his subjective opinion was a deliberate lie.
Interestingly, Mr Hollander referred us to Shawcross and Beaumont, Air Law , which states at 44.1:
"It is understood from the Department of Transport that no permission is required where the operator of an aircraft registered outside the United Kingdom is a company which is a member of a group of companies, where it intends to use that aircraft solely for the purpose of carrying passengers in the group and where the monies passing between companies are wholly internal to the group thus not constituting the kind of valuable consideration operation intended to be caught by the article: individual cases should be checked."
It is of course not necessary for us to decide what the correct position is as a matter of law under the relevant Air Navigation Order, and there was no suggestion that Mr Tinkler had had this passage drawn to his attention at any relevant time. However the passage underlines the inevitable difficulties of establishing that Mr Tinkler's subjective statement of his view was untrue. In the circumstances, and in particular in the light of the CAA decision, I conclude the judge was wrong to find that there was a strong prima facie case that Mr Tinkler's statement was a deliberate lie. It is to be noted that, although the judge referred to invoices to "independent third parties" at  (i) of the judgment, the evidence demonstrated that the invoices were in fact all addressed to group companies or companies in shared ownership.
During the course of the appeal Mr Elliott made certain allegations in relation to the use of the aircraft by a company called W A Developments Limited ("WADL") which he claimed was a third party. As a result the court gave directions to the appellants to file a witness statement addressing the group structure of WADI at the time of the investigation and confirming that all relevant invoices had been provided to the CAA for the purposes of the investigation. The appellants filed a witness statement dated 22 November 2013 from Anthony Barnfather, a partner in Pannone LLP, solicitors, who had acted on behalf of WADI in connection with the CAA investigation in 2007 and 2008 into the historic use of WADI's aircraft. This statement explained in extensive detail the group structure of the various group companies including the fact that WADI and WADL were each beneficially owned by Mr Tinkler (as to 73%) and Mr William Stobart (as to 27%) and the fact that the CAA had been provided with a list of all invoices issued by WADI relating to the use of the aircraft identifying the relevant customer. He confirmed that, in addition to Mr Crawley being provided with specific invoices which he had requested, WADI had assured Mr Crawley that it would voluntarily give him access to all copies of any invoice or other records he wished to examine.
Mr Barnfather also set out in his statement the detailed facts and submissions upon the basis of which:
"Pannones submitted on WADI's behalf to the CAA that in the circumstances set out above no offences had been committed given (a) a proper reading of the ANO (on which submissions were made) and given the (very different) mischief which it was intended to prevent (b) in the light of the position confirmed by the Department of Transport and (c) in the light of the particular circumstances [relating to the raising of the invoices set out in his witness statement] "
He also explained how in the circumstances the CAA had concluded that (notwithstanding Mr Elliott's detailed allegations) there was insufficient evidence to take the matter forward. Although this statement was not before the judge, it conclusively demonstrates that, in the light of such advice, Mr Tinkler's subjective view at the time that the allegations were unfounded was a reasonable one to hold and that, accordingly, the probability of demonstrating that the expression of such a belief was a deliberate lie, was remote. The further materials submitted by Mr Elliott in relation to aircraft insurance did not undermine this position in any way.
I also conclude that even if, contrary to my view, there was a prima facie case that Mr Tinkler had deliberately overstated the position, it would clearly not be proportionate, in the public interest or in accordance with the overriding objective to permit the allegation to proceed. The factors that come into play under this head are the following.
i) Mr Elliott has delayed for many years before making this particular contempt allegation; the witness statement was made in November 2008, in the Manchester proceedings, over four years before the present contempt allegation was made. It is far too late to raise the point now.
ii) By seeking to pursue the contempt allegation, Mr Elliott is in effect seeking by collateral means to challenge yet again the making of the Tetlow injunction; these are points - if they were of any validity - that could and should have been raised at trial or on appeal in the context of those proceedings. He is also seeking to resurrect the allegations of aviation illegality, which were struck out by Master Leslie as totally without merit in proceedings on 10 March 2010. He is also in effect attempting to make a collateral attack on the refusal by the CAA to prosecute WADI.
iii) It is clear from the history of this matter, the civil restraint orders which have been made and the language in which Mr Elliott has framed his accusations, that Mr Elliott has pursued, and intends to continue to pursue, a relentless crusade against the Stobart parties based inter alia on his belief that the CAA should have brought a prosecution against them. In my judgment, in the absence of a very clear case of a deliberate lie, this court should not lend its aid to the promotion of such a strategy.
The judge set out what he regarded as the relevant facts at paragraphs  -  of the judgment.
Mr Elliott alleges that Mr Tinkler told a deliberate lie when he stated at paragraph 17(b) of the 24 November 2008 witness statement served in the Manchester proceedings that, in relation to the defamatory statements about which Mr Elliott complained:
"He has not, so far as I know, put his concerns into writing and asked for a retraction (as he is required to do under the terms of his promise)."
The full paragraph reads as follows:
"17. I wish to comment on two suggestions that Mr Elliott has made as to why he is entitled to ignore the promises he made in July 2007.
(a) He alleges that I blackmailed him into agreeing to the undertakings he gave. The allegation that I blackmailed him is totally untrue. At the time, Mr Elliott was legally represented. I point out that Mr Elliott has not sought to set aside the agreement on the grounds of duress or otherwise.
(b) Mr Elliott may allege that he has been the subject of defamatory statements and therefore he is entitled by the terms of his promise to make any allegations he chooses. Mr Elliott has not particularised the defamatory statements about which he complains. He has not, as far as I know, put his concerns into writing and asked for a retraction (as he is required to do under the terms of his promise). He has simply written a letter in which vague allegations are made, requiring a published apology and threatening proceedings, which he issued in very short order." [Emphasis added.]
This allegation relates to the proviso to the undertaking in the Tomlin order which I have set out above. Mr Tinkler accepted that this statement was wrong. On 2 November 2007 Mr Elliott had sent to Mr Tinkler an email which was intended to comply with the scheme set out in the proviso. It was in the following terms:
"It has come to my attention that you have slandered me and also made defamatory comments about me to now several parties.
I offer you seven days to wholly retract and apologise to me for the following false statements that you have made to the above mentioned parties:
1. That I flew an Augusta helicopter for you unlawfully.
2. That I am responsible for the criminal aviation activities that you are under investigation for through poor advice from myself.
3. That I was sacked from my position with WADI.
4. That I did not on numerous occasions advise you of your criminality and urged you to cease it.
5. That I was not acting in the capacity as Aviation Director for WADI.
All of the above statements you have made to several parties are wholly false. I offer you seven days to unreservedly retract these false statements and Undertake to me that they will not be repeated."
Mr Tinkler said in his evidence on the present application (two witness statements dated respectively 5 and 18 February 2013) that, at the date when he received the 2 November 2007 email he was not aware of the proviso in the Tomlin order. He had not been personally involved in the final stages of agreeing the Tomlin order, negotiations having been carried out by a colleague. The 2 November 2007 email itself made no reference to the proviso or the undertaking. By the time he made the 24 November 2008 witness statement he had been made aware of the proviso but at that point in time he did not remember the 2 November 2007 e-mail which had been received over a year beforehand and honestly believed that no relevant correspondence had been received from Mr Elliott in relation to the proviso. Thus when Mr Tinkler made his 24 November 2008 witness statement, although he referred to the proviso, he did not appreciate that (one year previously) he had received an email from Mr Elliott intending to do just that. In paragraph 49 of his judgment the judge appears to have overlooked paragraphs 18-20 of Mr Tinkler's witness statement dated 18 February 2013, as the judge wrongly states that Mr Tinkler did not allege that he had forgotten about the e-mail at the time that he made the 24 November 2008 witness statement. However in his evidence Mr Tinkler clearly was saying precisely that, as was clear from both paragraph 27 of his witness statement dated 5 February 2013 and paragraphs 18 to 20 of his witness statement dated 18 February 2013.
When, in the course of the injunction proceedings, Mr Elliott responded to the 24 November 2008 statement, by means of a witness statement dated 2 December 2008, Mr Elliott expressly referred to the 2 November 2007 email. He also referred to it in his Defence and Counterclaim served at about the same time. When the matter came before HHJ Foster on 10 December 2008 on [an inter partes basis], the judge confirmed in his judgment that he had read Mr Elliott's witness statement (which expressly referred to the 2 November 2007 e-mail) but nevertheless continued the injunction previously granted. HHJ Tetlow continued the injunction on 13 January 2009 at a hearing when Mr Elliott was present. At the next hearing before MacDuff J (on 15 January 2009) Counsel then appearing for Mr Tinkler (Mr Craig Sephton QC) drew the failure to refer to the e-mail in the 24 November 2008 witness statement expressly to the attention of MacDuff J. Mr Sephton apparently offered to provide a further witness statement correcting the error but this was subsequently overlooked and never provided. At the trial on 15 March 2010, the skeleton argument of Mr Tinkler's counsel referred in terms to the 2 November 2007 e-mail and that Mr Elliott had sent the 2 November 2007 e-mail and that Mr Tinkler had admitted receiving it.
Mr Hollander accepted that this was a serious error by Mr Tinkler for which he has justifiably been criticised. However, he submitted that there was no basis for the judge's conclusion that it was deliberate and that it would have been a bizarre thing for Mr Tinkler to have done if it was deliberate, as it was obvious that Mr Elliott would bring up the email at the first opportunity and thus discredit Mr Tinkler's evidence.
Mr Elliott submits that Mr Tinkler, knew full well that he, Mr William Stobart and Mr Ben Whawell received the e-mail in November 2007 and knew that, if Mr Tinkler had admitted such receipt, he would have never got the injunction. He submits that the statement was deliberately made to achieve a fraudulent ex parte injunction which would not have been granted had the court known that the private undertakings had become null and void because the proviso had been "enacted".
As pointed out above, the judge clearly preceded on an erroneous factual assumption that Mr Tinkler has not stated that he had forgotten about the 2 November 2007 e-mail. Moreover the judge gave no basis for his conclusion that the statement was a deliberate lie. In my judgment, in the light of Mr Tinkler's explanation - which is highly understandable given the fact that the relevant e-mail did not refer to the proviso at all - there was no basis upon which the judge could properly come to the conclusion that there was a strong prima facie case that there had been a deliberate lie on Mr Tinkler's part.
I also accept Mr Hollander's submission that it was not proportionate, in the public interest or in accordance with the overriding objective for the allegation to proceed to a full contempt hearing. Although the judge was right to comment that an error made in the context of a without notice application for an injunction is always serious, in the present case subsequent courts had confirmed the validity of the injunction after the error had been fully disclosed and HHJ Tetlow ultimately granted a final injunction at trial. Likewise, as with the previous allegations, the error occurred over four years ago, and no previous application to bring contempt proceedings had been made in the context of the Manchester proceedings. The judge was wrong in failing to take these matters into account. Given the history of the matter he should not have given permission to proceed on this allegation.
The judge set out what he regarded as the relevant facts at paragraphs - of the judgment.
Mr Elliott's allegation is that Mr Howarth told a deliberate lie when he stated in paragraph 31 of his witness statement dated 13 June 2012 that the allegation that "Mr Tinkler has been held to misrepresent documents" was "wholly untrue". He contends that Mr Howarth was attempting to deceive the court in order to obtain an unlawful injunction against Mr Elliott.
Mr Howarth's witness statement was served in support of an application made by the Stobart parties in the website proceedings for an injunction against Mr Elliott to restrain publication of allegedly defamatory statements on the stobartwhistleblower.wix.com site. It is necessary to read the statement in its context. The relevant paragraphs read as follows:
"Stobart Whistleblower website
28. Over the last 24 hours, it has come to my attention that Mr Elliott has set up a website through a business called Wix.com ("the Wix website"). The link to the website is www.stobartwhistleblower.wix.com/stobartwhistleblower. at pages 8 to 29 is a printout of the contents of the website. There can be no doubt the Stobart whistleblower is Mr Elliott and that he is the author of the website. In the section entitled "The Story", he is the Aviation Director referred to. The section entitled "The Evidence" states:
"You can review the pertinent points of the recent High Court Judgment in favour of the Whistleblower at the High Court Gagging Injunction Lifted page."
29. Accessing this page takes you to the judgment of the Honourable Mrs Justice Sharp in the case of William Andrew Tinkler(1), WADI(2) and Peter Elliott which resulted in the 15 March 2012 order.
30. Within the contents of the Wix website, Mr Elliott makes a number of incorrect and misleading statements regarding the Claimants.
31. In particular, he indicates:
(a) That Mr Tinkler has admitted in excess of 6,172 criminal aviation offences;
(b) That Mr Tinkler has been held to misrepresent documents;
(c) That perjury and/or perverting the course of justice prosecutions are currently being sought against Mr Tinkler;
(d) That Mr Tinkler has abused the Defendant and/or the Courts in the United Kingdom;
(e) That the Serious Fraud Office have held that Mr Tinkler and Mr Stobart have defrauded Stobart Group shareholders of £11 million;
(f) That Mr Tinkler and Mr Stobart sold Carlisle Airport from their private company to Stobart Group at an over-value; and
(g) That public shareholders and private pension funds were defrauded.
I have spoken to Mr Stobart and Mr Tinkler and they have told me (and I believe from my own knowledge of these matters) that these allegations are wholly untrue."
The application for the injunction was made to HHJ Pelling QC ex parte but on notice to Mr Elliott on 13 June. The judge said that the evidence
"includes a number of significant omissions. I do not mean to personally blame anyone; it may well be that they are accidental omissions, given the speed with which the statement was prepared."
The judge adjourned the hearing to 15 June without granting any injunction so that Mr Elliott could have a fuller opportunity to consider the evidence. Mr Howarth then put in a further witness statement dated 14 June which corrected his earlier witness statement dated 13 June 2012. He said at paragraph 9 (b):
"Mr Elliott states that Mr Tinker has been held to misrepresent documents. I assume that in making this allegation Mr Elliott is relying upon the judgment of Mrs Justice Sharp of 15 March 2012 in which she indicated Mr Tinkler's his witness statement dated 24 November 2008 misrepresented a letter written by Mr Elliott dated 18 August 2008. This however was an isolated oversight and Mr Elliott's suggestion that numerous documents have been misrepresented by Mr Tinkler is incorrect."
In paragraph 26 of her judgment dated 15 March 2012 Sharp J had said:
"Once again there was no mention of the 2007 email. Moreover the letter to which [Mr Tinkler] referred (and which he did not exhibit) was misrepresented."
The letter to which Mr Tinkler referred (and which was said to be misrepresented) was also referred to at paragraph  of Sharp J's judgment, which Mr Howarth had exhibited to his first statement. It is apparent from Mr Howarth's witness statement dated 13 June 2012 that the essence of the allegation was that by claiming that Mr Tinkler had been held to misrepresent documents, the website falsely indicated a course of conduct.
It was also apparent from counsel's skeleton argument at the adjourned hearing before HHJ Pelling QC that this limb of the injunction was sought on the basis that the reference to "documents" indicated a course of conduct. In both his oral and his written arguments Counsel expressly referred to paragraphs  of Sharp J's judgment. In the event HHJ Pelling QC refused to grant this limb of the injunction on the basis that there was a possibility that the allegation made by Mr Elliott in this respect might be justified and accordingly the grant of an injunction was inappropriate at that stage.
In his witness statements on this application, dated respectively 18 February 2013 and 18 March 2013, Mr Howarth explained that he had not originally recalled that passage in the judgment of Sharp J when making his statement dated 13 June 2012 and had clarified that particular point in his witness statement dated 18 March 2013.
Although the relevant paragraphs of the Sharp judgment should have been referred to in Mr Howarth's 13 June 2012 witness statement, the reality was that Mr Tinkler had not been held to misrepresent (plural) documents and the plural was significant. Moreover the matter had been addressed in Mr Howarth 14 June 2012 witness statement.
In those circumstances I cannot agree with the judge that the evidence relating to this issue shows a sufficiently strong prima facie case of a deliberate and dishonest lie on Mr Howarth's part. As Mr Howarth had actually exhibited the judgment of Sharp J to the witness statement complained of, it would have been apparent to anyone who read the exhibit in full that in relation to one document, Sharp J had indeed said at  that a document referred to by Mr Tinkler had been misrepresented. In those circumstances, and given the fact that the matter was corrected a day later, it is highly improbable that Mr Howarth was deliberately setting out to deceive the court; the much more likely scenario is that, as he said, he made an error and that when he made his witness statement on 13 June 2012, he did not have in mind  of the lengthy judgment of Sharp J.
Moreover, once again, considerations of proportionality, the public interest and the overriding objective strongly militate against this particular allegation proceeding to a full committal hearing. No injunction was ever granted in relation to that particular issue. The correct position had been expressly drawn to the attention of the court by counsel for Mr Tinkler both orally and in his written skeleton argument at the injunction hearing on 15 June 2012. If any point were going to be taken in relation to contempt of court by Mr Elliott, then it should have been taken at that stage. Once again I am left with the impression that this is an attempt by Mr Elliott to re-litigate issues that have already been determined.
The judge dealt with this allegation at paragraphs - of the judgment.
The allegation relates to paragraph 36 of Mr Howarth's witness statement dated 13 June 2012, served in the website proceedings, in which he stated:
"As explained above as a consequence of the previous outrageous and incorrect allegations made by Mr Elliott to the CAA that WADI was conducting its flying operations unlawfully, a long expensive and detailed investigation was undertaken by the CAA into the WADI operation. That investigation concluded that no action would be taken by the CAA against WADI, Mr Tinkler or indeed any other part of the Stobart group. Mr Elliott is now making incorrect and misleading comments about the Claimants which not only illustrates the unfortunate and distorted interpretation which Mr Elliott places upon events that seriously damages the business interests and reputations of the Claimants ".
Mr Elliott alleges that the statement that his allegations were "…outrageous and incorrect …" was false and was known to Mr Howarth to be false at the date of his witness statement.
In dealing with this allegation the judge said:
"I am satisfied that Mr Elliott has demonstrated a sufficiently strong prima facie case that the assertion that his allegations were false and known to Mr Howarth to be false to pass the threshold test for the grant of permission by reference to the material relied on by Mr Elliott that is summarised above in relation to Allegation 4. Mr Howarth's response at Paragraphs 35-38 of his statement of 18th February 2013 does not address this material satisfactorily, or in most cases, at all. I leave to the end the issues concerning proportionality and the public interest to a later stage in this judgment."
This allegation is based upon the same "aviation criminality issue" which I have already addressed above in relation to allegation 4. As he explained in paragraphs 35 to 38 of his witness statement dated the 18 February 2013, Mr Howarth's position was:
" Save that it has always been accepted by Andrew Tinkler since his initial interview with the CAA that invoices were sent to other companies within the Stobart group, and/or with shared ownership, in relation to their use of the air craft owned by WADI, my position is and remains that Claimant' s allegations are untrue and outrageous."
For the same reasons as those expressed in relation to allegation 4, I conclude that there was no basis for the judge' s conclusion that there was a strong or indeed any prima facie case that this was a deliberate lie on Mr Howarth's part. Moreover the judge appears not to have taken into account the evidence contained in Mr Howarth's third witness statement dated 10 April 2013, served after the draft judgment had been circulated, but to which no objection was taken, which pointed out that Mr Howarth's employment with the Stobart group had not begun until after the CAA investigation had been completed. Indeed there was no evidence that Mr Howarth had been in any way personally involved in the CAA investigation or its aftermath or that, in making his statement, he was doing other than relying upon what he had been told by Mr Tinkler.
Once again, in my view there was no justification for permitting this allegation to proceed to a full committal hearing. Given the history of the matter, there was no public interest in doing so; nor was it proportionate to do so in relation to this particular statement of Mr Howarth, based upon what he had learnt in his capacity as a director of legal services; nor was the overriding objective engaged.
Mr Elliott's complaint under this head is that, in paragraph 12 of Mr Tinkler's witness statement dated 5 February 2013 (which he served in the present proceedings by way of answer to Mr Elliott's earlier allegations of contempt), Mr Tinkler said:
"I continue to regard [Mr Elliott's] allegations of aviation criminality…. as being totally unfounded."
I have quoted the full paragraph above. The judge dealt with the allegation in paragraph 70 of the judgment stating that his conclusions were precisely the same as those which he had reached in relation to allegation 4. He concluded that Mr Elliott had established "a sufficiently strong prima facie case that the statement was false and made knowing it to be false".
Again for the reasons which I have already given in relation to allegation 4, there was no factual basis upon which the judge could reach this conclusion.
Moreover, viewed in its proper context, the statement was one which was made in the context of answering Mr Elliott's allegations of contempt, which repeated a previous statement made by Mr Tinkler as to the subjective views which he had previously he held, and which asserted that he maintained those views at the present time. On no basis in the circumstances of the present case could it be regarded as proportionate, in the public interest or furthering the overriding objective that a repeated assertion of that sort, should be subject to a separate charge in committal proceedings.
Mr Elliott's complaint under this head is that, in paragraph 18 of Mr Tinkler's witness statement dated 23 January 2013 (a witness statement also served in the present proceedings to rebut Mr Elliott's allegations of contempt) used the words "[under a structure] that [Mr Elliott] had advised us to set up". The full sentence reads:
"It transpired that certain of the inter-group invoicing transactions between the Claimants [Stobart group companies], which were issued under a structure that the Defendant [Mr Elliott] had advised us to set up, were not permissible under aviation regulations. When this was pointed out to me I agreed to reverse the transactions in question and the Civil Aviation Authority accepted that as a suitable solution."
Mr Elliott contends that this was a gross lie by Mr Tinkler which was a gross smear of Mr Elliott personally and that the opposite was true.
However, Mr Tinkler has always stated that the structure in question was set up on Mr Elliott's advice in the course of Mr Elliott's employment with WADI. Mr Tinkler's view is supported, at least on a prima facie basis, by the board minute to which I have referred above. Mr Elliott has always denied that he gave the relevant advice. But the fact that there is a dispute of fact between the two men in relation to this issue, and that one or other is mistaken, does not give rise to any inference that Mr Tinkler has told a deliberate lie about the matter. The judge did not really deal with this issue in paragraph 71 of his judgment at all. The documents to which he refers do not support the conclusion that there is a strong prima facie case – or indeed any case – that Mr Tinkler made the statement relating to Mr Elliott's advice, knowing it to be false.
Moreover, similarly in relation to this allegation, neither the public interest, proportionality or the overriding objective justified this allegation proceeding to a full committal.
As I have already stated, in my judgment the judge was wrong to conclude in relation to each of the allegations that there was a strong prima facie case on the evidence demonstrating that Mr Tinkler or Mr Howarth had knowingly made false statements. This is not a case where the judge was making primary findings of fact based on the conduct of witnesses. He was evaluating whether a particular evidential threshold had been reached on the materials before him. This court is in an equally good position to make that evaluation.
Moreover, in my view the exercise of the judge's discretion, as reflected in paragraphs 84 to 102 of his judgment where he went on to consider what he referred to as "public interest, proportionality and other discretionary factors", was also fatally flawed. Whilst, obviously, there is a strong public interest in ensuring that knowingly false statements made by parties in court proceedings should not go unpunished (particularly in circumstances where such false statements are improperly deployed to obtain injunctions that would never have been granted, but for the statement), this was not such a case. The judge in my view failed to stand back and look at the overall reality of the litigation. He failed to take account of the fact that the incorrect, or allegedly untrue, statements of Mr Tinkler and Mr Howarth, about which Mr Elliott complained, had all been canvassed as issues in the relevant proceedings and that, where appropriate, injunctions had nonetheless been made and continued, or not in fact granted in the light of, or notwithstanding, such statements. He also failed to take any, or any, sufficient account of the fact that, on the history of the matter, Mr Elliott had clearly demonstrated that he was a vexatious litigant with an agenda to pursue in relation to his past relationship with the Stobart parties and was not an appropriate guardian of the public interest. He was wrong to conclude that it was in the public interest that such allegations should proceed to a full committal hearing. Against the background of the full history of the matter such a result was disproportionate.
For all the above reasons, in my view the judge should not have permitted any of these allegations to go forward to a committal hearing.
Nor, for similar reasons, would I permit Mr Elliott to seek to argue his further allegations of contempt, which were dismissed by the judge. There was no cross appeal before us and the further evidence upon which Mr Elliott seeks to rely could have been obtained with reasonable diligence for use at the hearing before the judge. I also doubt whether it would have made any difference to the judge's correct decision to refuse to allow these three additional contempt allegations to proceed.
After this judgment had been circulated in draft, Mr Elliott supplied a further statement and other materials upon the basis of which he invited the court to postpone the hand-down of our judgment, pending further applications which he intimated he intended to make. We have carefully considered the further materials supplied by Mr Elliott, but we do not consider that it is appropriate for the formal hand-down of this judgment to be delayed.
I would allow this appeal.
Lord Justice Christopher Clarke:
Lady Justice Arden:
I also agree.
Note 1  EWHC 797 (QB). [Back]
Note 2  EWHC 2693 at  per Briggs J [Back]
Note 3 Also known as Honda v Neesam  1 WLR 2406 at . [Back]
Note 4 See paragraph 31 of HHJ Main’s judgment dated 10 June 2009 in 8A40076. [Back]
Note 5  FSR 393, Scott VC [Back]
Note 6  1 WLR 2406 [Back]
Note 7  EWHC 347 TCC Akenhead J [Back]
Note 8  EWHC 1849 (Admin) at . [Back]
Note 9 See paragraph 20 of the judgment. [Back]
Note 10 Counsel should please check this is correct. [Back]
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