William Andrew Tinkler v Esken Ltd (formerly Stobart Group Ltd)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leech |
| Judgment Date | 07 June 2022 |
| Neutral Citation | [2022] EWHC 1375 (Ch) |
| Docket Number | BL-2020-002022 |
| Court | Chancery Division |
[2022] EWHC 1375 (Ch)
Mr Justice Leech
BL-2020-002022
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Mr John Wardell QC and Mr James McWilliams (instructed by Clyde & Co LLP) appeared on behalf of the Claimant.
Mr Richard Leiper QC and Mr Daniel Isenberg (instructed by Rosenblatt) appeared on behalf of the Defendant.
Hearing dates: 7–10, 14, 15 and 18 February 2022
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.
Table of Contents
| I. Preliminary Matters | [1] |
| II. The Law | [11] |
| A. The Test | [11] |
| (1) Limb 1: Dishonesty | [14] |
| (2) Limb 2: Materiality | [20] |
| (3) Limb 3: New Evidence | [27] |
| B. Fraud Claims | [36] |
| III. The 2018 Claim | [38] |
| C. Introduction | [38] |
| D. The Boardroom Dispute | [57] |
| E. The Proceedings | [180] |
| IV. The ET Claim | [208] |
| V. The Issues | [212] |
| F. Statements of Case | [212] |
| (1) The Particulars of Claim | [212] |
| (2) The Defence | [216] |
| G. Closing Submissions | [219] |
| (1) Mr Tinkler's Submissions | [219] |
| (2) SGL's Submissions | [220] |
| H. The Court's Approach | [221] |
| VI. Findings | [222] |
| I. The Witnesses | [222] |
| (1) Mr Brady | [224] |
| (2) Mr Ferguson | [225] |
| (3) Mr Coombs | [227] |
| (4) Mr Wood | [228] |
| (5) Mr Soanes | [229] |
| J. Findings of Fact | [230] |
| (1) By the start of 2018 had Mr Brady concluded that Mr Tinkler could not remain on the Board as an executive director and had he begun to devise a plan to remove or otherwise neutralise him? | [230] |
| (2) Did Mr Brady make Mr Soanes privy to his plans regarding Mr Tinkler and over the course of 2018 generally and did both Mr Brady and Mr Ferguson share confidential information regarding Mr Tinkler with Mr Soanes? | [288] |
| (3) Did Mr Brady and Mr Ferguson intend to use Article 89(5) in February 2018 to remove Mr Tinkler from the Board (whether by using it to persuade Mr Tinkler to step down voluntarily to save face or forcibly removing him against his wishes) and would they have done so but for Mr Garbutt's refusal to sign the Article 89(5) letter? | [322] |
| (4) Did Mr Brady deliberately delete his WhatsApp messages with Mr Soanes on 28 May 2018 at a time when he appreciated that litigation was in prospect and did he deliberately not mention that fact to SGL's solicitors? | [333] |
| (5) Did the Committee as formed in May 2018 lack independence and was this intended? | [334] |
| (6) Was Mr Laycock induced to step down as a director of SGL in July 2018 in order to permit Mr Tinkler's removal using Article 89(5) following his anticipated re-election at the AGM on 6 July 2018? | [342] |
| (7) Did Mr Brady deliberately delete his Telegram messages with Mr Soanes prior to his mobile telephone being imaged by HSF on 2 July 2018 and did he deliberately not mention that fact to SGL's solicitors? | [361] |
| (8) (i) Did Mr Ferguson fail to draw Rosenblatt's attention to the fact that he realised he had not captured all of his SGL-related emails for the purposes of the 2018 disclosure exercise? (ii) Did he deliberately delete emails pre-dating 3 May 2018 from his Wilton Park email account and fail to mention this to Rosenblatt? | [372] |
| (9) Did SGL deliberately fail to disclose documents which it was under a duty to disclose in the 2018 Claim? | [390] |
| (10) Can it be properly inferred that SGL deliberately failed to give disclosure of other relevant documents in the 2018 Claim? | [408] |
| (11) Was Mr Soanes no mere witness for SGL in the 2018 Claim but heavily involved in the preparation for trial and a man who was – and even now appears to remain – firmly inside SGL's tent? | [409] |
| (12) Did Mr Brady give knowingly false evidence on behalf of SGL in the 2018 Claim? | [416] |
| (13) Did Mr Soanes give knowingly false evidence on behalf of SGL in the 2018 Claim? | [417] |
| (14) Did Mr Ferguson give knowingly false evidence on behalf of SGL in the 2018 Claim? | [433] |
| (15) Did Mr Brady know that Mr Soanes had given knowingly false evidence on behalf of SGL in the 2018 Claim? | [439] |
| (16) Was the Loan Agreement on uncommercial terms and was it demanded by Mr Soanes as the price of his evidence and assistance in the 2018 Claim? | [441] |
| K. Summary | [460] |
| VII. Disposal | [479] |
I. Preliminary Matters
This is my judgment following the trial of a claim by Mr Andrew Tinkler to set aside the judgment of His Honour Judge Russen QC (sitting as a Judge of the High Court) (the “ Judge”) dated 15 February 2019 (the “ Judgment”) in a claim brought by Esken Ltd (the “ 2018 Claim”) after an expedited trial lasting 11 days (the “ Trial”). In this judgment I will adopt the convention of referring to paragraphs in a court or tribunal judgment by using square brackets. Where I cite paragraphs in square brackets below, I intend to refer to paragraphs in the Judgment unless I identify another decision or authority from which the citation is taken.
Throughout the 2018 Claim Esken Ltd was called Stobart Group Ltd and the short title of the 2018 Claim was Stobart Group Ltd v Tinkler. On 3 February 2021 it changed its name to Esken Ltd but to avoid any confusion, I will refer to the company as “ SGL” throughout this judgment. Indeed, the statements of case in this action (which have been through a number of amendments in a short time) still refer to the company as Stobart Group Ltd.
In the 2018 Claim SGL claimed a declaration that Mr Tinkler had been lawfully dismissed as an employee and removed as a director, a claim for unlawful means conspiracy and a claim that he had incurred excessive and unjustified expenses (which was withdrawn at the Trial). Mr Tinkler counter-claimed for a declaration that he had not been validly dismissed and that members of the board of directors had authorised two transfers of shares for improper purposes.
The Judge dismissed the conspiracy claim. But he held that Mr Tinkler had committed breaches of his fiduciary and contractual duties to SGL and that his dismissal as an executive director and employee of SGL was valid. He also held that Mr Tinkler's subsequent removal as a director was valid. Finally, he also found that four of SGL's directors had failed to act for proper purposes in authorising one transfer of shares.
Mr Tinkler now invokes the court's jurisdiction to set aside the Judgment for fraud on the grounds that individual witnesses (whose conduct can be attributed to SGL) deliberately failed to disclose documents (or destroyed them) and that they gave false evidence at the Trial. Miles J also expedited the trial of this action and I heard it over 8 days between 7 and 18 February 2022. Mr John Wardell QC and Mr James McWilliams (who did not appear at the Trial) represented Mr Tinkler. Mr Richard Leiper QC and Mr Daniel Isenberg (who had appeared at the Trial) represented SGL.
I am grateful to both counsel and their teams for their assistance and the quality of their written and oral submissions. Where I refer to the submissions of Mr Wardell and Mr Leiper (below), I do so in the knowledge that those submissions were the product of an extensive team effort by all members of their individual teams (as leading counsel themselves would no doubt be the first to acknowledge).
In section II (below) I address the relevant legal principles. But it is important that I record at the outset that the function of the Court in this action was not to try again the issues which the Judge determined but to decide whether the Judgment should be set aside. As Mr Wardell acknowledged in opening, the bar is a high one. Indeed, the bar is set even higher than the tort of deceit where recklessness is a sufficient state of mind to found liability.
In section III I set out the facts, evidence and findings from the 2018 Claim. Rather than produce a purely factual summary of those events followed by a discussion or analysis of the evidence, I have adopted the less conventional approach of incorporating into the narrative the relevant parts of the Judgment and any evidence given by the witnesses which was not directly relevant to the issues which I had to decide. As I have indicated, it was not my function to decide the substantive issues or between the differing accounts given by the witnesses. However, I record the oral evidence of the witnesses on the substantive issues served to inform my evaluation of their evidence more generally.
In section IV I briefly deal with the employment claim (the “ ET Claim”) issued in the Central London Employment Tribunal (the “ Tribunal”) by Mr Ian Soanes. It is Mr Tinkler's case that the disclosure which Mr Soanes made to him in the ET Claim led to his realisation that SGL had deliberately failed to comply with its disclosure obligations and its witnesses had given false evidence in the 2018 Claim. I add that Mr Tinkler also brought a claim for libel and malicious falsehood defamation against individual board members arising out of the same facts (the “ Defamation Claim”). On 1 February 2021 the Court of Appeal dismissed an appeal by Mr Tinkler against the decision of Nicklin J striking out the claim: see [2021] 4 WLR 27; and on 30 March 2022 Mr Tinkler's application for permission to appeal to the Supreme Court was refused. The Defamation Claim was relevant to disclosure but apart from this, it had no relevance to the proceedings before me.
In section V I identify the key pleaded issues and the findings which I was asked to make at trial. In section VI I set out my assessment of the...
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