William Andrew Tinkler v Invesco Asset Management Ltd

Hearing dates: 10, 11 and 12 June 2025

Approved Judgment

I. The Applications

By Application Notice dated 20 November 2024 Invesco Asset Management Ltd (“ IAML”), the Tenth Defendant, and Mr Frederick Bouverat, the Twelfth Defendant, applied to strike out the Particulars of Claim under CPR Part 3.4 or, alternatively, for reverse summary judgment dismissing the claim on the basis that the Particulars of Claim disclose no reasonable grounds for bringing the claim or that it is an abuse of process or that it has no real prospects of success. Mr Bouverat was at the relevant time an employee of IAML and I will refer to the Tenth and Twelfth Defendants together as “ Invesco”. The application was supported by a witness statement also dated 20 November 2024 and made by Ms Jane-Emma Sutcliffe, a partner in Simmons & Simmons LLP (“ Simmons & Simmons”), Invesco's solicitors.

By Application Notice also dated 20 November 2024 Stifel Nicolaus Europe Ltd (“ Stifel”), the Nineteenth Defendant, also applied to strike out the claim against it on the grounds that the claim was an abuse of process or there were no reasonable grounds for bringing the claim or that the Claimants were bound by an admission. Stifel's application was supported by a witness statement also dated 20 November 2024 and made by Mr Simon Nathan Willmott, a partner in Ashurst LLP (“ Ashurst”), Stifel's solicitors.

Finally, by Application Notice dated 3 December 2024 Orbitus Trustees (Guernsey) Ltd (“ Orbitus”), the Sixteenth Defendant, applied to strike out the Particulars of Claim or for reverse summary judgment on the same basis as Invesco. Orbitus's application was supported by a witness statement dated 3 December 2024 and made by Ms Oyindamola Gesinde, a partner in Baker & McKenzie LLP (“ B&M”), Orbitus's solicitors. I will refer to Invesco, Orbitus and Stifel as the “ Active Defendants” and their three applications as the “ Strike Out Applications”.

By Application Notice dated 16 May 2025 (served on 21 May 2025) Mr Andrew Tinkler and Stobart Capital Ltd (“ SCL”) applied to stay the claim and adjourn the hearing of the Strike Out Applications on the basis that the Takeover Panel (the “ Panel”) was carrying out an investigation into potential breaches of the Takeover Code (the “ Code”) and, in particular, whether the Active Defendants together with a number of the other named Defendants were acting in concert in breach of the Code.

On 10 June 2025 I heard the Claimants' application to stay the claim and adjourn the hearing of the Strike Out Applications and on 11 June 2025 I delivered an ex tempore judgment dismissing the application: see [2025] EWHC 1596 (Ch). On 11 and 12 June 2025 I heard the Strike Out Applications and in this reserved judgment I now determine them. Mr Andreas Gledhill KC leading Mr Timothy Lau spoke first and made oral submissions on behalf of Stifel. Mr Adam Temple and Mr Cleon Catsambis adopted those submissions on behalf of Invesco and Orbitus respectively and then made oral submissions focussing on the position of their own clients respectively. Mr Jonathan D King then made submissions on behalf of the Claimants answering all of the submissions made on behalf of the Active Defendants before Mr Gledhill, Mr Temple and Mr Catsambis each made a short reply. I am grateful to all counsel for their Skeleton Arguments and oral submissions.

II. Procedural History

On 23 May 2024 the Claim Form in the present proceedings was issued and I will refer to it as the “ Present Claim” to distinguish it from the earlier actions involving the Claimants and other parties who were originally named in the Claim Form. I set out immediately below a brief summary of each action and its outcome. I do so in the order in which the actions were commenced although there was a considerable overlap between many of them.

(1) The Defamation Claim

On 8 June 2018 Mr Tinkler issued a claim for defamation against Mr Iain Ferguson CBE, Mr Warwick Brady, Mr John Coombs, Mr Richard Laycock and Mr Andrew Wood (the “ Defamation Claim”). All five of the Defendants were at the time directors of Esken Ltd, then known as the Stobart Group Ltd. Mr Ferguson was the Chairman, Mr Brady was the CEO and Mr Laycock was the CFO. Mr Tinkler was also a director and employee (although he was shortly to be removed). The subject matter of the Defamation Claim was the publication of an announcement by the Regulatory News Service dated 29 May 2018 (the “ 29 May RNS”). I will refer to Mr Ferguson, Mr Brady, Mr Coombs and Mr Wood as the “ Four Directors” and the company itself as “ SGL”.

Mr Tinkler's claim alleged both libel and malicious falsehood and in a judgment dated 17 December 2018 (the “ Meaning Judgment”) Nicklin J determined a number of preliminary issues in relation to the meaning and effect of the 29 May RNS: see [2018] EWHC 3563 (QB). The Court of Appeal dismissed his appeal: see [2019] EWCA Civ 819. On 10 September 2019 Nicol J gave permission to Mr Tinkler to withdraw the libel claim leaving only the malicious falsehood claim and the Defendants applied to strike it out. In a judgment dated 8 June 2020 (the “ Malicious Falsehood Judgment”) Nicklin J struck it out as an abuse of process: see [2020] EWHC 1467 (QB). On 1 February 2021 the Court of Appeal upheld his decision: see [2021] EWCA Civ 18. Peter Jackson LJ gave the leading judgment with which Dingemans LJ and Sir Richard McCombe agreed. I will refer to his judgment as the “ Malicious Falsehood Judgment (CA)”.

(2) The 2018 Claim

On 15 June 2018 SGL issued a Claim Form (the “ 2018 Claim”) against Mr Tinkler for a declaration that he had been lawfully dismissed as an employee and removed as a director of SGL. Mr Tinkler counter-claimed for various relief including an order setting aside the transfer of shares to SGL's employee benefit trust (the “ EBT”) of which Orbitus (which was then known as Jupiter Trustees Ltd) was the trustee. He also counter—claimed for a declaration that Mr Ferguson had not been validly re-elected as a director and the Chairman of SGL at the annual general meeting of SGL which took place on 6 July 2018 (the “ AGM”).

The 2018 Claim was expedited and then heard over eleven days by His Honour Judge Russen QC who handed down a reserved judgment on 15 February 2019 (the “ Russen Judgment”): see [2019] EWHC 258 (Comm). He held that Mr Tinkler's employment had been validly terminated and that he had been validly removed as a director on 14 June 2018 and then again on 7 July 2018 under Article 89(5) of SGL's Articles of Association. He dismissed all of the allegations against SGL apart from one. He held that the Four Directors had authorised the transfer of 5,320,425 ordinary shares of SGL out of treasury to the EBT for an improper purpose although he refused to set aside the transfer and rejected the claim that Mr Ferguson had not been validly re-elected. On 6 June 2019 Flaux LJ (as he then was) refused permission to appeal and on 13 November 2019 Males LJ refused Mr Tinkler permission to re-open that decision.

(3) The Guernsey Applications

SGL (which is now in liquidation) was incorporated under the laws of Guernsey. On 28 June 2018 Mr Tinkler applied for an interim injunction in the Royal Court of Guernsey against SGL to prevent the removal of a resolution to re-elect him as a director from the notice for the AGM. On 5 July 2018 Judge Finch OBE dismissed the application. On 6 July 2018 Mr Tinkler applied for an interim injunction to restrain Orbitus from voting at the AGM and the Royal Court dismissed that application inter alia because the meeting had already started: see the Russen Judgment, [359]. I will refer to these applications as the “ First Guernsey Application” and the “ Second Guernsey Application” and together as the “ Guernsey Applications”.

(4) The ET Claim

SCL was originally a joint venture between Mr Tinkler and Mr Ian Soanes, who gave evidence at the trial of the 2018 Claim. Mr Soanes was also an employee and director of the company. On 3 May 2018 Mr Soanes issued a claim for unfair dismissal in the Central London Employment Tribunal (the “ ET Claim”) claiming that he had been dismissed for whistle-blowing and making protected disclosures. On 27 April 2020 the Employment Tribunal dismissed the ET Claim on the basis that Mr Soanes had no automatic right to claim unfair dismissal and that he had not suffered any detriment as a result of making the protected disclosures.

On 6 November 2020 Mr Mark Anderson QC (sitting as a judge of the Chancery Division) granted permission to Mr Tinkler to use documents which Mr Soanes had disclosed and produced in the ET Claim for the purpose of a claim to set aside the Russen Judgment and to bring a second claim. That purpose was described in paragraph 2 of the judge's Order in the following terms:

“The Applicant do have permission to use and rely upon the Disclosed Documents for the purposes of: (i) an intended claim against Stobart Group Ltd (“Stobart Group”) to set aside the Judgment of HHJ Russen QC in proceedings brought by...