William Andrew Tinkler v Iain George Thomas Ferguson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice Sharp,Lord Justice Bean |
| Judgment Date | 15 May 2019 |
| Neutral Citation | [2019] EWCA Civ 819 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/0192 |
| Date | 15 May 2019 |
[2019] EWCA Civ 819
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lady Justice Sharp
and
THE RIGHT HONOURABLE Lord Justice Bean
Case No: A2/2019/0192
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
THE HONOURABLE MR JUSTICE NICKLIN
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tinkler the Appellant in person
Andrew Caldecott QC (instructed by Herbert Smith Freehills) for the Respondents
Hearing dates: 3 rd April 2019
Approved Judgment
Introduction
This is an appeal from Nicklin J in a libel and malicious falsehood action brought by the Claimant against five defendants. It concerns an announcement made on the London Stock Exchange's Regulatory News Service by Stobart Group Limited (“Stobart”) on 29 th May 2018 (the “Announcement”).
The Claimant, Mr Tinkler was, at the time of the Announcement, an executive director and substantial shareholder in Stobart. He was the Chief Executive Officer of Stobart from 2007 until his resignation on 28th June 2017. The Claimant is also the sole director and CEO of Stobart Capital Limited (“Stobart Capital”).
The First Defendant, Iain Ferguson, is a director and the non-executive Chairman of Stobart. The Second Defendant is Stobart's CEO. The Fourth Defendant, Richard Laycock, is Stobart's Chief Financial Officer. The Third and Fifth Defendants, John Coombs and Andrew Wood respectively, are non-executive directors of Stobart.
Mr Tinkler issued the claim form on 8th June 2018. The words complained of from the Announcement (with paragraph numbers added in square brackets) were:
“STOBART GROUP LIMITED.
(“Stobart Group” or “the Company”)
Update on Annual General Meeting and possible Board changes
[1] On 25th May 2018 the Company announced that the Board has been advised by Andrew Tinkler, Executive Director, that he will be voting at the AGM against the reelection of Iain Ferguson, as a Director and Chairman of the Company.
[2] The Company also announced that the Ongoing Board* confirmed that it had full confidence in Mr Ferguson, both as a Director and as Chairman, and would therefore be recommending to shareholders that they vote in favour of Mr Ferguson's reelection.
[3] The Ongoing Board would like to provide shareholders with some context for this regrettable situation. It is committed to the highest standards of corporate governance and believes that challenge, scrutiny and robust debate in boardrooms are part of the effective oversight of management and the decision-making process.
[4] Under this commitment the Board has been forced to address a number of challenges posed by Mr Tinkler in the recent past. The Board has, throughout these challenges, sought to balance the benefits of harnessing Mr Tinkler's entrepreneurial talent whilst maintaining strong corporate governance on behalf of, and in order to create significant shareholder returns for, all investors.
[5] The Ongoing Board had considered it in the best interests of the Company and its shareholders as a whole, at least until Mr Tinkler's move against Mr Ferguson, to seek to resolve these challenges through negotiation and discussion. However, the Ongoing Board no longer considers, in light of Mr Tinkler's position, such a course of action to be possible. It deeply regrets that Mr Tinkler has destabilised the Group through his actions at this crucial time for the business and urges all shareholders to support the re-election of Mr Ferguson at the forthcoming AGM.
[6] Further, the Ongoing Board believes that a vote against the re-election of Mr Ferguson would weaken the Company's corporate governance and would not be in the best interests of shareholders:-
[7] It would dilute the robustness and the diversity of opinion on the Board, which contains strong, varied expertise drawn from experience working with leading public and private companies;
[8] It would impact the Group's planned growth strategy and its ability to optimise shareholder returns;
[9] It would create instability. The Board had worked together effectively to provide a strong basis for growth, which is reflected in the Group's successful performance. During Mr Ferguson's chairmanship both Andrew Tinkler and Warwick Brady have benefited from a stable platform that has allowed the Company to deliver a total shareholder return of 185% in the three years to 28th February 2018 and provide £74.1m to shareholders through dividends and buybacks in the financial year ended 28th February 2018.
[10] Background to current composition of the Board.
[11] Between 2007 and 2013 Stobart Group received criticism for its corporate governance, principally in relation to engaging in perceived related party transactions. The Company also experienced a number of boardroom changes, in particular in relation to the role of Chairperson. Between 2007 and 2013 Stobart Group shares reached a peak price of 183p per share.
[12] As a result the Company put in place a structure for improved governance and oversight:-
[13] Mr Ferguson was appointed as Chairman and Andrew Wood as Non-Executive Director in 2013 and additional Non-Executive Directors, John Coombs and John Garbutt, were appointed in 2014;
[14] Mr Ferguson confirmed his remit with key shareholders before appointment which was to:-
[15] regularise governance, particularly regarding related party transactions;
[16] fix the balance sheet;
[17] clarify the future strategy;
[18] plan management succession.
[19] In mid-2016 Mr Tinkler:-
[20] advised Mr Ferguson he wanted to organise a successor CEO;
[21] requested Mr Ferguson to support as positive introduction into the business for Warwick Brady.
[22] In June 2017, and following six months as Deputy CEO, Mr Brady was appointed CEO, with the unanimous support of the Board.
[23] On Mr Brady's appointment, Mr Ferguson committed to Mr Brady and the Board to continue as Chairman until 2020 to ensure stability and a positive transition.
[24] He also supported Mr Tinkler's wish to remain as an Executive Director and to establish Stobart Capital as an independently owned business outside the Stobart Group, whilst harnessing Mr Tinkler's entrepreneurial skills for the benefit of the Group.
[25] Management's achievements
[26] The Company has achieved much since the stabilisation of its governance arrangements:-
[27] the structured sale of Eddie Stobart has resulted in cash proceeds to the Group so far of in excess of £300m over two partial disposals in 2014 and 2017, and gearing reducing significantly to stand at some 9% at 28 February 2018;
[28] £112.5m of dividends have been paid to shareholders since 1st March 2015;
[29] £74.1m has been returned to shareholders in the financial year ended 28 February 2018, including dividends of £58.1m and net share buybacks of £16.0m;
[30] the total shareholder return over the three years to 28 February 2018 is 185% including capital growth, dividends and share buybacks of £16.0m;
[31] Under Mr Brady, there is a clear strategy for growth:-
[32] core focus on execution of the Energy Division business plan and the development of the Aviation Division, particularly London Southend Airport;
[33] both core operating divisions have ambitious growth plans beyond delivery of previous targets;
[34] the Board's ambition is to double the value of the business by 2022;
[35] divestment of non-core assets and investments over the next 18 months to support the dividend until they are replaced by cashflows from operating divisions.
[36] Professional management teams are in place at key operating divisions to drive the business forward.
[37] Mr Tinkler
[38] The Board has been forced to address a number of challenges posed by Mr Tinkler in the recent past, including:
[39] settlement of contractual issues arising from a previous related party transaction when Mr Tinkler was CEO;
[40] a proposed selective buyback of part of his stake in the Company;
[41] a proposed additional ex-gratia bonus for him of shares then worth some £8m;
[42] a proposed buy-out of the Company when the share price was in the range of 100p to 120p;
[43] a proposed related party transaction associated with the recent aborted airline transaction.
[44] Mr Tinkler's threat to vote against the Chairman presents a number of serious risks:-
[45] significant Board resignations, both Executive and Non Executive (Mr Wood and Mr Coombs have now already confirmed that they will resign from the Board if Mr Ferguson is not re-elected);
[46] sponsor and independent broker resignation;
[47] operational management destabilisation and distraction;
[48] potentially weakened corporate governance;
[49] potential adverse market response and risk to shareholder value.
[50] Mr Tinkler is no longer key to delivery of the current management's operational strategy. His focus, during the 50% of his time which is committed to the Stobart Group, is on the non-operating divisions. The balance of his time is spent on his separate vehicle Stobart Capital, although:-
[51] he is now in dispute with the co-founder of that business;
[52] in its first year Stobart Capital has so far not generated any significant transactions for Stobart Group.
[53] Ongoing Board support for Mr Ferguson
[54] As announced on 25 May 2018, all of the Ongoing Board confirm that they have full confidence in Mr Ferguson, both as a Director and as Chairman, and will therefore be recommending to shareholders that they vote in favour of Mr Ferguson's re-election.
[55] Warwick Brady, CEO said: “Stobart Group now has a clear and focused strategy to drive growth in our core operating divisions in order to double the value of the business...
To continue reading
Request your trial
-
Richard Millett v The Right Honourable Jeremy Corbyn MP
...emphasised that they are evaluations of the person's behaviour. Reliance was placed by Counsel for Mr. Corbyn on Tinkler v Ferguson [2019] EWCA Civ 819. 87 I did not find the Tinkler case to be of assistance. One cannot draw assistance from what a court has understood words in a different ......
-
William Andrew Tinkler v Iain George Ferguson
...in the Meaning Judgment). 18 Mr Tinkler's appeal against the Meaning Judgment was dismissed by the Court of Appeal on 15 May 2019 ( [2019] EWCA Civ 819). Longmore LJ held that meaning (c) for the defamation claim, was “ very much at the lower end of the scale” and one from which no inferen......
-
Sayed Zulfikar Abbas Bukhari v Syed Tauqeer Bukhari
...UKSC 17, [2020] AC 593 [41]–[45], a case involving a social media post on Facebook, and the Court of Appeal in Tinkler v Ferguson [2019] EWCA Civ 819 [15]–[18] have emphasised the importance of the considering the medium of publication and context when assessing the meaning ( Koutsogianni......
-
Miqdaad Versi v Mohamed Husain (Aka ED Husain)
...the words complained of to form a provisional view about meaning, before turning to the parties' pleaded cases and submissions, see Tinkler v Ferguson [2020] EWCA Civ 819 at 29 In Jones v Skelton [1963] 1 WLR 1362 the Privy Council explained what is meant by a natural and ordinary meaning:......
-
Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia
...of online posts alleging a solicitor had ‘fed on the plight’of those who sufferinvestment losses: at [22]. In Tinkler v Ferguson[2019] EWCA Civ 819 (‘Tinkler’), the Court of Appeal upheld the first-instance decision that an announcement made on the London Stock Exchange’s Regulatory News S......