William Andrew Tinkler and Another v Peter Elliott
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Christopher Clarke,Lady Justice Arden |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2013] EWHC 797 (QB),[2014] EWCA Civ 564 |
| Docket Number | Case No: A3/2013/1178 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2014 |
[2014] EWCA Civ 564
Lady Justice Arden
Lady Justice Gloster
and
Lord Justice Christopher Clarke
Case No: A3/2013/1178
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE PELLING QC
3MA90033
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Elliott appeared in person
Mr Charles Hollander QC (instructed by Squire Sanders UK LLP) for the Appellants
Hearing dates: Monday 18 th November 2013 and with further written and email materials being received on:
/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 31/01/2014.
Lady Justice GlosterIntroduction
This is an appeal against the decision of HHJ Pelling QC 1, 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.
Background
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:"
"Re [WADI]:
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...
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