William Andrew Tinkler v Stobart Group Ltd
| Jurisdiction | England & Wales |
| Judge | Master Raeburn |
| Judgment Date | 17 November 2021 |
| Neutral Citation | [2021] EWHC 3035 (Ch) |
| Docket Number | Case No: BL-2020-002022 |
| Court | Chancery Division |
[2021] EWHC 3035 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Remotely at:
The Royal Courts of Justice
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
DEPUTY Master Raeburn
Case No: BL-2020-002022
and
James McWilliams (instructed by Clyde & Co LLP) for the Claimant
Alice Mayhew (instructed by Taylor Rose TTKW Limited) for the Second Respondent
Hearing date: 20 September 2021
APPROVED JUDGMENT
I direct that this approved judgment, sent to the parties by email on 17 November 2021, shall deemed to be handed down on that date, and copies of this version as handed down may be treated as authentic.
Introduction
This is the Claimant's application for non-party disclosure pursuant to CPR rule 31.17. Orders have been entered by way of consent disposing of the application as against the First and Third Respondents. The Second Respondent resists the application and in particular, the scope of the disclosure sought.
In this action, the Claimant, Mr. William Andrew Tinkler seeks to set aside the judgment of HHJ Russen QC dated 15 February 2019 (the “ Underlying Judgment”) on the basis of fraud (the “ Fraud Claim”). The proceedings are against the Defendant, Stobart Group Limited.
The Claimant was previously a director and employee of the Defendant and is currently the director and shareholder of a separate entity called Stobart Capital Limited (“ Stobart Capital”). The Second Respondent is Mr. Ian Derek Soanes, a former employee of Stobart Capital.
By way of background, the Underlying Judgment was given in proceedings brought by the Defendant in November 2018 against the Claimant for, amongst other things, breach of fiduciary duty (the “ 2018 Proceedings”). It is the Claimant's case in the Fraud Claim that the Underlying Judgment was obtained as a result of:
i) the deliberate non-disclosure by the Defendant of highly relevant documents; and
ii) the provision of knowingly false evidence by the First Respondent (the Defendant's Chairman), Mr. Brady (the Defendant's CEO) and the Second Respondent.
The Claimant alleges that the fraud only came to light after the Underlying Judgment had been handed down and as a result of separate Employment Tribunal proceedings issued by the Second Respondent against the Claimant and Stobart Capital (the “ ET Proceedings”), which were ultimately dismissed by a decision of the Tribunal dated 27 April 2020.
The Claimant says that the ET Proceedings prompted him to “re-review” the disclosure provided by the Second Respondent and that exercise revealed to him that (what are said to be) highly material documents, including a series of emails, text messages, WhatsApp messages and Telegram exchanges between the Second Respondent and Mr. Brady had not been disclosed by the Defendant in the 2018 Proceedings (the “ Undisclosed Documents”).
The Claimant says that those Undisclosed Documents are important because they:
i) were highly material and ought to have been disclosed by the Defendant;
ii) were indicative of broader failures on the part of the Defendant to comply with its disclosure obligations beyond those Undisclosed Documents that have been identified;
iii) cast documents which were disclosed in the 2018 Proceedings in a different light, supporting the case that the Claimant made in those proceedings which was rejected in the Underlying Judgment;
iv) contradicted the evidence given in the 2018 Proceedings by the Defendant and in particular, by Mr. Brady, Mr. Ferguson and the Second Respondent; and
v) supported the existence of an alleged conspiracy to injure the Claimant by unlawful means of which the Defendant, Mr. Brady, Mr. Ferguson and the Second Respondent were allegedly a part.
In light of the Undisclosed Documents, the Claimant issued the Fraud Claim on 13 November 2020 and issued separate proceedings against the Defendant, Mr. Brady, Mr. Ferguson and the Second Respondent in unlawful means conspiracy, which have been stayed by consent pending the outcome of the Fraud Claim.
The Pleadings
In light of the submissions below, it is necessary to set out certain extracts from the Claimant's Particulars of Claim. In relation to the Defendant's alleged failure to disclose relevant documents in the 2018 Proceedings the Claimant pleads:
“69. In circumstances where:
69.1. the existence of the Critical Undisclosed Documents was only revealed to Mr Tinkler as a result of Mr Soanes' disclosure of the same in the ET Proceedings by reference to the issues in those proceedings;
69.2. the Critical Undisclosed Documents are suggestive of further communications between Mr Soanes and Mr Brady that were not disclosed;
69.3. Mr Brady would, necessarily, have had communications with other individuals in relation to the matters in issue in the 2018 Proceedings to which Mr Soanes was not a party and which he could not therefore have disclosed in the ET Proceedings even if relevant to the issues in those proceedings;
69.4. the Company's Disclosure and its approach to the same in the 2018 Proceedings had been inadequate and had been found to be such pursuant to Mr Tinkler's Specific Disclosure Application; and
69.5. for the reasons set out above, Mr Brady – the individual at the Company whom it is to be inferred was ultimately responsible for the conduct 2018 Proceedings, being the person who verified with a statement of truth the Company's pleadings – was responsible for the destruction on his own mobile telephone of relevant evidence,
it is to be inferred that other relevant documents adverse to the Company's case in the 2018 Proceedings were deliberately not disclosed and/or destroyed by Mr Brady and/or the Company.
70. Mr Tinkler reserves his right to plead further as to such undisclosed documents and their materiality to the 2018 Proceedings following disclosure.”
The Legal Principles
The Court may make an order for disclosure against a person who is not a party to proceedings pursuant to CPR rule 31.17 which provides (so far as material):
(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where—
a. the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
b. disclosure is necessary in order to dispose fairly of the claim or to save costs.
(4) An order under this rule must—
a. specify the documents or the classes of documents which the respondent must disclose; and
b. require the respondent, when making disclosure, to specify any of those documents—
i. which are no longer in his control; or
ii. in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may—
a. require the respondent to indicate what has happened to any documents which are no longer on his control; and
b. specify the time and place for disclosure and inspection.”
“Likely to” support or adversely affect a parties case
The threshold condition in CPR rule 31.17(3)(a) is that the documents are “likely to” support the case of the applicant or adversely affect the case of one of the other parties to the proceedings. In Three Rivers DC v Bank of England (No. 4) [2002] EWCA Civ 1182 Chadwick LJ said at [29]:
“the threshold condition in rule 31.17(3)(a) is lowered by the qualification ‘likely to’. It is not necessary that the documents of which disclosure is ordered will support the applicant's own case or that they will adversely affect the case of another party; it is enough that they are likely to do so. The explanation for that difference is also obvious; the rule-making body appreciated that an applicant cannot be expected to specify which documents under the control of another — which [they] may never have seen — will support [their] case or adversely affect that of another party, or to know whether [they] will wish to rely upon them. It is further appreciated that the person against whom disclosure is sought — being a stranger to the dispute — cannot be expected to decide for [themselves] which of the documents under [their] control do support the applicant's case or adversely affect the case of one of the other parties to an action in which [they are] not a party. Nor can the court be expected to decide whether documents which it has not seen will support the applicant's case or adversely affect that of another party. The test has to be one of probability. The question, of course, is what degree of probability does the test require.”
The degree of probability required on an application of this nature is that the documents “may well” be relevant within the meaning of the rule. This sets the threshold at a level lower than having to prove relevance on the balance of probabilities; Three Rivers No. 4 at [32].
It is therefore necessary for this Court to consider the nature of the documents sought in order to determine their potential relevance in order to correctly apply the test under CPR rule 31.17(3)(a); Sparkes v LPFA [2021] EWHC 1265 (QB), per Murray J at [36].
In order to determine the bearing that a document or class of documents may have on a party's case, the Court must focus on the pleadings themselves in order to determine how the issues have been articulated as they stand, as opposed to speculation on how a different case may be pleaded after a new source of documents have been interrogated; per Eady J in Flood v Times Newspapers Limited [2009] EWHC 411 (QB) at [36].
Necessity...
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