William Andrew Tinkler v Iain George Ferguson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 08 June 2020 |
| Neutral Citation | [2020] EWHC 1467 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-006293 |
| Date | 08 June 2020 |
[2020] EWHC 1467 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2019-006293
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
The Claimant appeared in person
Andrew Caldecott QC and Jacob Dean (instructed by Herbert Smith Freehills) for the Defendants
Hearing dates: 31 March and 1 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Nicklin
When it was commenced, this was a claim for libel and malicious falsehood brought by the Claimant (“Mr Tinkler”) against the five defendants. Mr Tinkler has abandoned the libel claim and so it is now solely a claim for malicious falsehood (“the Malicious Falsehood Action”). It concerns an announcement made on the London Stock Exchange's Regulatory News Service (“RNS”), by Stobart Group Limited (“Stobart”), on 29 May 2018 (“the Announcement”).
The Parties
At the time of the Announcement:
i) Mr Tinkler was a substantial shareholder in and an executive director of Stobart;
ii) the First Defendant (“Mr Ferguson”) was a director and non-executive chairman of Stobart. He left Stobart on 23 July 2019;
iii) the Second Defendant (“Mr Brady”) was, and remains, Stobart's Chief Executive Officer;
iv) the Third Defendant (“Mr Coombs”) was, and remains, a non-executive director of Stobart;
v) the Fourth Defendant (“Mr Laycock”) was Stobart's Chief Financial Officer. He left that role, and with it his position on the board, on 6 July 2018, and then left the Company on 31 August 2019; and
vi) the Fifth Defendant (“Mr Wood”) was a non-executive director of Stobart, until 23 July 2019.
The overall dispute
The litigation between Mr Tinkler, Stobart, and the five Defendants was caused by a dispute that had arisen, within the board of Stobart, about whether Mr Ferguson should continue as Stobart's Chairman. Mr Tinkler believed he should not; the five Defendants believed he should. It was in the context of that dispute that the Announcement was issued by Stobart. It was issued in the name of the “Ongoing Board”, which was said in the Announcement to include each of the five Defendants.
The Malicious Falsehood Action is not the only litigation to have arisen from the dispute. Separately, Stobart commenced a claim against Mr Tinkler in the Commercial Court on 15 June 2018 and Mr Tinkler brought a counterclaim against Stobart in those proceedings (“the Stobart Action”). The Stobart Action was expedited, and tried before HHJ Russen QC (sitting as a Judge of the High Court) between 12–29 November 2018. Judgment was handed down on 15 February 2019 ( [2019] EWHC 258 (Comm)) (“the Stobart Judgment”).
It suffices for present purposes for me to summarise the overall dispute as follows. Matters came to a head between Mr Tinkler and Stobart (and the five directors sued in the Malicious Falsehood Action) in May 2018, when Mr Tinkler indicated that he was unhappy with the performance of Mr Ferguson. Mr Tinkler wrote to the board of Stobart, on 25 May 2018, informing it that he intended to vote against the re-election of Mr Ferguson as Chairman of the board of Stobart. The vote was due to take pace at Stobart's Annual General Meeting on 6 July 2018. Stobart made an RNS announcement of Mr Tinkler's decision to oppose the re-election of Mr Ferguson on 17 May 2018. Following that, the Stobart board (without Mr Tinkler and John Garbutt) considered whether a further RNS announcement should be made to give further details of the views of the other members of the board on whether Mr Ferguson should be re-elected. In short, a sub-committee of the board of Stobart was formed. Its members were Mr Brady, Mr Coombs and Mr Wood. Mr Ferguson attended most meetings of the sub-committee although not in a formal capacity. Largely acting upon recommendations made by the sub-committee, Stobart issued the Announcement on 29 May 2018 which is the publication sued upon by Mr Tinkler in the Malicious Falsehood Action.
Also, on 9 June 2018, Mr Tinkler sent a letter to the shareholders of Stobart (“the Shareholder Letter”). He expressed himself to be horrified by the “ recent announcements issued and action taken in the name of the Company, and by the public mud-slinging in which some of my fellow directors have seen fit to engage without any regard to the waste of the Company's resources involved or the impact on employees, customers, and suppliers”. His letter urged shareholders to vote against Mr Ferguson and in favour of Philip Day, then the CEO of the Edinburgh Woollen Mill (“Mr Day”), and concluded by saying “ a change of Chairman would help to uphold the agreed company strategy, to stabilise operational management and to deliver the best returns for shareholders.” Mr Tinkler criticised the establishment and composition of the subcommittee and the process which led to, and the contents of, the Announcement. He considered that it was defamatory of him. He referred to his own track record and the fact that the share price of 296 pence, when he had ceased to be CEO, had since fallen 28% to 214 pence per share. He said he was saddened by “ the impact this disagreement amongst directors is having on the Company's operational management.” Mr Tinkler urged shareholders to appoint Mr Day as Chairman of Stobart in place of Mr Ferguson. On 9 June 2018, Mr Tinkler forwarded the Shareholder Letter to all employees of Stobart (“the Communication to Employees”).
On 10 June 2018, in his capacity as CEO of Stobart, Mr Brady sent an email to the company's employees stating that Stobart had not wanted the internal discussion with Mr Tinkler to become public but that it was Stobart's belief that Mr Ferguson should be allowed to continue as Chairman.
On 14 June 2018, Stobart's solicitors sent a letter to Mr Tinkler's solicitors intimating a substantial claim against him and stating that Stobart had decided to terminate Mr Tinkler's employment. A separate letter from Stobart, also dated 14 June 2018, purported to terminate Mr Tinkler's employment, with immediate effect, on the grounds that he had attempted to destabilise Stobart. Mr Tinkler's dismissal was announced to employees of Stobart by email from Mr Brady later on 14 June 2018. He stated that Mr Tinkler had engaged in “ a campaign to attack our Directors with a view to replacing our Chairman with his own choice”.
As noted above, the Stobart Action was commenced on 15 June 2018 (but not served apparently until 24 July 2018). Meanwhile, at the AGM on 6 July 2018, Mr Ferguson was re-elected as Chairman of Stobart.
Mr Tinkler counterclaimed in the Stobart Action for declaratory relief that his purported removal as a director, and termination of his employment, was invalid and that he remained a director of the Company. He also sought an injunction restraining the Board from purporting to remove him as a director.
The Stobart Judgment
HHJ Russen QC handed down the Stobart Judgment on 15 February 2019 (see [4] above). I will need to look at the judgment in more detail shortly (with numbers in square brackets referring to paragraphs of the Stobart Judgment), but the issues in the litigation were set out by HHJ Russen QC in [50]. The Stobart Judgment is long, but, in summary, the Judge held:
i) Stobart had failed to establish that Mr Tinkler had engaged in an unlawful means conspiracy ([948]) and it had abandoned during the trial a claim that Mr Tinkler had made unjustified claims for expenses;
ii) Mr Tinkler had acted in serious breach of his fiduciary and contractual duties, including by agitating for the removal of Mr Ferguson, improperly sharing confidential information with a third party and writing the Shareholder Letter and forwarding it to Stobart's employees ([950]);
iii) the sub-committee had been properly constituted and had the authority to dismiss Mr Tinkler from his employment ([952]);
iv) the dismissal of Mr Tinkler on 14 June 2018 was a lawful and valid act ([953]);
v) the removal of Mr Tinkler as a director of Stobart on 14 June 2018 was a lawful and valid act ([955]);
vi) the resolution to re-elect Mr Ferguson at the AGM on 6 July 2018 was not invalid ([956]).
The decision to issue the Announcement, and whether it contained falsehoods about Mr Tinkler published maliciously by the Defendants in the Malicious Falsehood Action, formed part of the wider issue of whether Mr Ferguson, Mr Brady, Mr Coombs and Mr Wood (referred to as “the Four Directors” in the Stobart Judgment) had acted in breach of their fiduciary duties as directors in the steps they took against Mr Tinkler (see Issue 4(c) in [50]; [264]–[275], [312], [667]–[668], [752], [768], and particularly [785]–[794]).
The Court of Appeal has twice refused applications by Mr Tinkler for permission to appeal against the Stobart Judgment. On 6 June 2019, Flaux LJ concluded that Mr Tinkler's challenges to HHJ Russen QC's findings that he had acted in breach of his fiduciary duties as a director of Stobart had no real prospect of success. Mr Tinkler asked the Court of Appeal to re-open the application for permission to appeal on the basis of an alleged apparent bias of the trial judge. This further application was refused by Males LJ on 12 November 2019.
History of the Malicious Falsehood Action
The Claim Form was issued on 8 June 2018 (but the...
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