(1) Stobart Group Ltd and Others (Claimants (2MA 90133) (4) William Andrew Tinkler and Another (Claimants (2MA 90133) and Defendants (3MA90033) v (6) Trevor Howarth (Defendant (3MA90033) Peter Elliott (Defendant (2MA 90133) and Claimant (3MA90033)
| Jurisdiction | England & Wales |
| Judge | HH Judge Pelling |
| Judgment Date | 11 April 2013 |
| Neutral Citation | [2013] EWHC 797 (QB) |
| Court | Queen's Bench Division |
| Date | 11 April 2013 |
| Docket Number | Case No: 2 MA 90133 AND 3 MA 90033 |
[2013] EWHC 797 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
His Honour Judge Pelling QC
Sitting as a Judge of the High Court
Case No: 2 MA 90133 AND 3 MA 90033
and
Mr Charles Hollander QC (instructed by Squire Sanders) for the Claimants in 2MA90133 and Defendants in 3MA90033
Mr Peter Elliott appeared in Person
Hearing dates: 20–21 March 2013
HH Judge Pelling QC:
Introduction
This the hearing of two main applications being:
i) An application in Claim number 3 MA 90033 ("the 90033 proceedings") by the Mr Peter Elliott ("Mr Elliott") for permission to bring contempt proceedings against Mr William Tinkler ("Mr Tinkler"), Mr Trevor Howarth ("Mr Howarth") and Mr William Stobart ("Mr Stobart") [hereafter collectively "the Stobart Defendants"]; and
ii) An application by (1) the Stobart Group Limited, (2) Mr Tinkler, (3) Mr Stobart, (4) Eddie Stobart Limited ("ESL") and (5) WA Developments International Limited ("WADI") [collectively hereafter "the Stobart Claimants"] to strike out the counterclaim made by Mr Elliott in Claim number 2 MA 90133 ("the 90133 proceedings").
The Stobart Claimants and the Stobart Defendants are referred to hereafter collectively as "the Stobart parties".
In addition to these applications, there is an application made by the Stobart Defendants in the 90033 proceedings and the Stobart Claimants in the 90133 proceedings for a General Civil Restraint Order against Mr Elliott. It has been agreed that this application be stood over to be heard following delivery of this judgment.
Mr Elliott issued three further applications shortly before this hearing being
i) an application for a stay of these various applications pending the determination of an application by him for permission to appeal to the Supreme Court from a decision of the Court of Appeal overturning a decision of Sharp J setting aside a final order made against Mr Elliott by HH Judge Tetlow sitting as a Judge of the High Court in earlier proceedings brought by Mr Tinkler and WADI against Mr Elliott with the claim number 8 MA 40076 ("the 40076 proceedings"). The Stobart parties and Mr Elliott refer to the order made by Judge Tetlow as "the Tetlow Order" and I adopt that nomenclature in this judgment;
ii) An application for a witness summons directed to an official of the Civil Aviation Authority ("CAA") who investigated what Mr Elliott calls in these and the 40076 proceedings as "the aviation offences" to which I refer in more detail below, and
iii) An application for third party disclosure.
The application to stay has become academic because by an Order of the Supreme Court made on 8 March 2013 permission to appeal was refused. It was agreed that witness summons and third party disclosure applications should be stood over to be determined after I have resolved the main applications.
The other matter before me was an application for directions in relation to an Inquiry concerning the losses if any recoverable by Mr Elliott under a cross undertaking given by the Stobart Claimants when applying for an interim injunction against Mr Elliott in the 90133 proceedings. I had ordered the Inquiry at an earlier hearing on 16 January 2013, because the Stobart Claimants had decided to discontinue their claim in the 90133 proceedings and in consequence the interim injunction that they had obtained in those proceedings was discharged. The Stobart claimants decided to discontinue the 90133 proceedings following the handing down of the Court of Appeal judgment in the 40076 proceedings, taking the view that there was sufficient protection for their interests from the Tetlow Order. The relevant directions were given at the end of the hearing before me and do not require any further elaboration.
Background
The background to the dispute between Mr Elliott and the Stobart parties has been rehearsed in a judgment given by me in October 2011 determining some contempt proceedings brought by the claimants in the 40076 proceedings for alleged breach by Mr Elliott of the final injunction against him contained in the Tetlow Order, in the judgment of Sharp J ( [2012] EWHC 600 (QB)) determining Mr Elliott's application to set aside the Tetlow Order (where the most detailed factual summary is to be found) and in the judgment of Maurice Kay LJ giving the judgment of the Court of Appeal ( [2012] EWCA Civ 1289) overturning Sharp J's Order. What is set out in this section of this judgment is a summary sufficient to make the applications and my determination of them intelligible. If a more detailed summary is required then reference should be made to each of the judgments that I have mentioned.
Mr Elliott was an experienced helicopter pilot who was engaged to provide aviation services to WADI until that relationship came to an end in March 2007 in circumstances of great acrimony. Mr Elliott maintains that he was forced to resign because, he alleges, WADI were conducting unlawful flying operations by permitting aircraft owned by it to be chartered to other companies with which WADI was linked being primarily companies within the Stobart group. He maintains that for such arrangements to be lawful, an Air Operators Licence ("AOL") is required from the CAA and (in relation to aircraft on the US Aircraft Register) a permit to similar effect issued by the Federal Aviation Authority ("FAA"). He maintains that an offence under the Air Navigation Order ("ANO") was committed every time an aircraft belonging to WADI was chartered while WADI did not have such a licence. A significant number of chartered aircraft movements are alleged to have taken place, which enables Mr Elliott to maintain that a very large number of offences were committed. Many of these flights originated from Carlisle Airport, a licenced airfield owned and operated by a company within the Stobart Group. Mr Elliott maintains that a consequence of unlawful charter flights originating from Carlisle was that the holder of the licence for Carlisle Airport committed an offence every time an unlawful charter flight departed from or (possibly) arrived at Carlisle.
Mr Elliott reported the allegedly unlawful activities to the CAA. There was an investigation (carried out by the official to whom Mr Elliott wishes a witness summons to be issued) and ultimately the CAA decided not to prosecute. The letter informing the Stobart parties of this conclusion is dated 6 th February 2008 and was sent to Pannone, the solicitors then acting for them, by the Head of the Enforcement Department of the CAA. The basis of the decision was said to be a conclusion that "… there is insufficient evidence of a breach of the Air navigation legislation to provide a realistic prospect of conviction…". The CAA wrote to Mr Elliott on the 26 th March 2008 in essentially similar terms. The reasoning leading to that conclusion is not set out in the letter. Mr Elliott has never accepted that the aviation offences were not committed and has sought to advance that allegation in a number of different ways in various claims to various courts over a number of years.
Aside from the issue concerning the alleged aviation offences, there was a dispute between Mr Tinkler and Mr Elliott concerning some land in Cumbria. This dispute led to litigation in the Chancery Division at Manchester District Registry. That claim was in the end settled on terms set out in the schedule to a Tomlin Order that included an undertaking in the following terms:
"UNDERTAKING BY THE CLAIMANT TO W.A. DEVELOPMENTS INTERNATIONAL LIMITED"
[Mr. Elliott] provides the following Undertaking provided that he is not subject to any defamatory or slanderous statements coming to his attention from [Mr. Tinkler] or his companies. If [Mr. Elliott] does receive knowledge of such statements he will put into writing to [Mr. Tinkler] his concerns and ask for a retraction within 7 working days of such statements. If he does not receive such a retraction then [Mr. Elliott] is at liberty to defend himself as he sees fit in the circumstances.
I, PETER ELLIOT, 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 the 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,...
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