Tinkler & Anor v Elliott [2011] EWCA Civ 1817

Case No A2 / 2011 / 1735[2011] EWCA Civ 1817
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE HOLMAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 7 th July 2011
Before
LORD JUSTICE RIXLORD JUSTICE LLOYD
Between
Tinkler & AnrAppellantsElliottRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Sephton QC (instructed by Messrs Squire Sanders and Dempsey (UK) LLP) appeared for Appellants.The Respondent appeared in person. for in person
Judgment
[1]The appeal in this case -- we do grant the applicant's permission to appeal -- arises in litigation which has a lengthy and unfortunate background. I need to say something about that background before I turn to the immediate order which has given rise to this appeal.[2]The respondent, Mr Peter Elliott, was at one time an employee, possibly a senior employee, of the second appellants, WA Developments International Limited (whom I will refer to as “WADI”). The first appellant, Mr William Tinkler, is I think a senior executive of WADI and also a senior executive of a publicly quoted company, Stobart Group Limited, in which I think both he and WADI itself are substantial shareholders.[3]WADI at one time owned Carlisle airport, which it sold to Stobart, which is perhaps how it acquired a substantial shareholding in that group. WADI has also had interests, I think more recently, together with Stobart, it seems in another airport at Southend.[4]Back in 2007 when Mr Elliott and WADI parted company in what we are told were acrimonious circumstances, WADI was in the course of selling or had recently sold its airport at Carlisle to Stobart. That was with the view of developing that airport from its small local status into something of at any rate a regional hub. There are possibly aspects of that intention which had some at any rate causative relevance, not necessarily legal relevance, to the litigation which ensued because to some extent it is clear that Mr Elliott considers himself to be a campaigner on behalf of local residents who might object to the development of that airport.[5]Be that as it may, following the acrimonious parting of ways in March 2007 Mr Elliott started to make serious allegations against the way in which WADI operated and the way in which Mr Tinkler exercised any authority within WADI, and those allegations appear to have been essentially of two kinds. One is that it was suggested that Stobart were defrauded to the extent of some £11 million in the purchase transaction of Carlisle airport itself, and the other allegation was that WADI, when operating its Carlisle airport, was operating it in ways which were contrary to aviation safety and contrary to aviation regulation and/or law.[6]Those allegations led to litigation between the parties which was quite quickly compromised on 13 July 2007 in a settlement under which Mr Elliott undertook not to repeat his allegations, at any rate of regulatory misconduct on behalf of the present appellants in the operation of their aircraft. Subsequently in 2009 the appellants began an action in Manchester which was designed to hold Mr Elliott to his undertakings in circumstances where he had started again to make allegations which the appellants described as outrageous claims. He was doing that, it seems, in connection with his own action which he had commenced in Newcastle, an action which was struck out on 21 April 2009. There that action remains.[7]The appellants' Manchester action led in due course to first an interim injunction being granted against Mr Elliott restraining the making of the disputed allegations on 22 May 2009 and ultimately to a final order in still broader terms. In the meantime on 10 June 2008 HHJ Main QC, sitting as a deputy High Court judge, found Mr Elliott to be in contempt of the interim injunctions. He committed him to prison for three months and made a civil restraint order (a “CRO”) against him. There was no appeal by Mr Elliott against his committal to prison for three months, although Mr Elliott informs us this morning that he would have liked to have appealed. He had of course a right to appeal. It is not clear to us why he did not advance that appeal, but we can imagine that circumstances were rather difficult. Be that as it may he has not at any time since, as we understand the matter, advanced an appeal from that committal sentence, although he has told us today that it would still be his intention even seven years later to seek to set aside that finding that he had broken the injunction and set aside the sentence that arose out of that injunction and its breach. He tells us that he has interested solicitors and Queen’s Counsel in his case for such an appeal if he were able to get permission for it so long afterwards, and that there would be a possibility of him obtaining a CFA to assist him. He says, however, that it would be more difficult, he understands, to secure the assistance of those solicitors and Queen’s Counsel so far unnamed if proceedings were elsewhere than in London.[8]An appeal from his committal sentence would naturally be in London. Mr Elliott would hope, it seems, to conjoin such an appeal with the forthcoming trial for committal on the second occasion about which I will say something more in a moment. We have explained to Mr Elliott, however, that any appeal from his first committal would be to this court, whereas any trial in respect of a second possible committal would be for a trial judge and not a matter over which this court had any jurisdiction.[9]Now I come forward to the matters which have reignited a hot dispute between the parties. It appears that despite the making by HHJ Main back in June 2009 of a CRO Mr Elliott has started another action for judicial review, back in October 2009, albeit that was promptly struck out within essentially a month by HHJ Tetlow and a further CRO, on this occasion an extended CRO, was then made. There was a further action begun in October 2009 against Stobart, which was struck out by Master Leslie here in London. HHJ Tetlow made the interim injunction permanent on 15 March 2010.[10]The current litigation which arises under the appellants' Part 8 form applying to commit Mr Elliott for breach of the now permanent injunction granted by HHJ Tetlow was commenced on 19 May 2011 this year and the matter which gave immediate rise to it was an article which appeared in the Daily Telegraph on 13 May 2011 which suggested that the appellants and Stobart were under investigation by the police and by the FSA. That article appeared, I think this is right, on the eve of an important public offering made by Stobart in the sum of about £120 million and the appellants (who under the terms of the injunction in their favour can complain about injuncted allegations made not only against the appellants themselves but also against any associate company, which would include Stobart for these purposes) were naturally concerned about the effect of such an article upon the public offering. There is also evidence before the court that the effect of that article and shareholder inquiries to which it gave rise was to drive down the price of the publicly quoted Stobart shares by a significant amount.[11]On 26 May this year, pursuant to their committal application, the appellants obtained before Mackay J at Liverpool an order permitting the issue of a third party witness summons essentially against the Cumbrian police. This permission was obtained on the basis of affidavit evidence produced by Mr Trevor Howarth, WADI's in house legal director, that pointed the finger at Mr Elliott both as someone who had been making injuncted allegations against the appellants to the Cumbrian police and also as the source of the Daily Telegraph journalist's article.[12]On 13 June 2011 King J, at a case management conference at which Mr Elliott was present, fixed a trial date for the committal application for the first available date after 14 July and on the same occasion the appellants obtained leave from King J to amend their Part 8 form to rely on documents which had come forward from the Cumbrian police pursuant to their witness summons. The appellants also served a third party witness summons on the CAA, the Civil Aviation Authority, again seeking the relevant file generated by a complaint from Mr Elliott and in due course they received such a file from the CAA, which has led to a further amendment of the Part 8 claim form albeit those further amendments have not yet resulted in permission to amend. Nevertheless the documents obtained both from the Cumbrian police and from the CAA, together with the twice amended claim form, were served upon Mr Elliott, the final documents from the CAA and the final form of the claim form being served upon him on 22 June of this year.[13]Thus far the claim to commit Mr Elliott had proceeded swiftly and efficiently from its inception towards a trial date, which had in the meantime been fixed for 27 July this year, that is to say in a few weeks' time. However, on 27 June 2011 a somewhat serendipitous event occurred in the following way. That was the return date for the CAA to come to court with their documents in case they had any objection about their production pursuant to the witness summons that had been served upon them. In fact they had been perfectly content to provide the documents requested much earlier so that, as I have already mentioned, those documents together with the amendments to which they had given rise had been completed in order to be able to be served upon Mr Elliott by 22 June. It may be that, as a litigant in person, Mr Elliott did not realise that in those circumstances there would be no need for a hearing by way of return of the witness summons on the date fixed for it, 27 June.[14]It was perhaps for that reason that on that day Mr Elliott turned up unexpectedly at the court in Manchester and came before HHJ Holman. Now as far as I can make out HHJ Holman, although he had been appointed as a gatekeeper, if I may express it in that way, for the CRO which had been made by HHJ Tetlow on 15 March 2010 and had been appointed gatekeeper for those purposes as and from 1 May 2010, it would appear that he had not had much to do with this litigation since that time, because Mr Elliott was not in the habit of complying with the CRO by seeking permission to commence his litigation -- he commenced it willy nilly -- and it would seem, as far as I can tell, that the only connection that HHJ Holman had had with this litigation prior to 27 June 2011 was the making of his order on 19 May 2011 when he gave to the appellants permission to issue the witness summons on the Cumbrian police. That summons was easily drafted because it simply asked for:
"...the file papers of the Legal Services Department of the Cumbrian police appertaining to the dealings of the Cumbrian police with the defendant"
No doubt the witness summons served on the CAA was in similar terms.[15]So HHJ Holman had had some exposure to this matter but it would appear that what I have described was his only exposure prior to, as I say, the serendipitous appearance of Mr Elliott before him on 27 June. Now that appearance on that day by Mr Elliott led to the judge summoning the appellants' solicitor to court without prior notice and the appellants' solicitor did go to court and the upshot of a hearing which then took place before the judge with the appellants' solicitor on the one side and Mr Elliott in person on the other was the order of HHJ Holman of that date, which is the order which is now appealed by the appellants. We do not have a transcript of the proceedings nor a transcript of any judgment but we do have of course the judge's order, which is in these terms:
"1) The hearing fixed for 27 July 2011 shall be for directions only. 2) The claimant shall by no later than 4.00pm on 5 July 2011 serve a further affidavit identifying the documents produced by the Civil Aviation Authority which are alleged to evidence breach by the defendant of the injunction order and how it is alleged that they are in breach. 3) The claimant shall file and serve a core bundle, case summary and proposed directions by 4.00 pm on 22 July 2011 4) The defendant has permission to issue an application for third party disclosure against Civil Aviation Authority and the Serious Fraud Office, such application specifying the documents sought and the grounds on which they are sought to be listed on 27 July 2011 5) Costs be in the application."
[16]The essence of the appeal is that the judge was wrong without good reason to vacate the trial date of 27 July and to turn that into a hearing for directions only and it is requested that this court should restore that trial date.[17]Now what had occurred before HHJ Holman to lead him to make that order and was it justified? As I have said we do not have a transcript of the proceedings or any judgment but we do have an attendance note of the 27 June itself made by Mr Lucci Dammone of the appellants' solicitors. I will read from its opening paragraph:
"Attending the Manchester District Registry of the High Court before HHJ Holman at short notice following a call from the court indicating that our attendance was required. HHJ Holman indicated that the case has been listed in order to enable Imogen Brooks [of the CAA] to attend in response to the summons. LD confirmed that the documents had been provided by Ms Brooks and it was for that reason she was advised that her attendance was not required and the court had been asked to vacate the hearing date. HHJ Holman indicated he wanted to ensure that the case was ready for trial. He asked whether we were simply relying upon Mr Howarth's evidence, LD confirmed that we were and that there was no further evidence that we intended to rely upon other than the first, second and third affidavits of Mr Howarth. Unfortunately the judge only had a copy of the third affidavit of Mr Howarth available on the court file. The judge pointed out that although the third affidavit of Mr Howarth exhibited the documents disclosed by Ms Brooks they did not identify which documents the claimants alleged evidence the breach of the injunction. HHJ Holman stated that the claimants needed to file a further affidavit setting out which documents evidenced such a breach. HHJ Holman also indicated that Mr Elliott was entitled to be protected in this way and it was not right or fair that he should be expected to trawl through the evidence himself. The judge therefore indicated that the hearing on 27 July ought to proceed by way of directions hearing and an order was made in the following terms."
Mr Dammone then set out the terms of the order made by HHJ Holman, which I have read into this judgment.[18]The note goes on to refer to further matters which occurred but which appear to have occurred after the making of the order, such as the judge explaining to Mr Elliott the position that he was under as a defendant to the committal claim and how he might or might not in accordance with his own will give evidence and so forth.[19]There then followed an exchange between Mr Elliott and the judge, which I think was what led in due course to the making of the judge's fourth direction, paragraph 4 of his order which I have read above. I think I was therefore incorrect a moment ago to say that the order originally made by the judge, which included the important order for vacation of the trial, was the order which I said I had already read into my judgment. It was an earlier version of the final order he made, which, however, omitted its fourth paragraph dealing with the defendant's permission to issue third-party disclosure application against the CAA and the SFO. That is all clear from a more careful reading of the attendance note as a whole.[20]It is therefore clear that the judge's critical vacating of the date for trial occurred even before his additional order designed to enable Mr Elliott to obtain further disclosure of documents.[21]Now Mr Elliott has addressed us both through two skeleton arguments of many pages which we have read and also by way of his extensive oral submissions today. He is concerned about the forthcoming trial for his committal. He is understandably upset about having to face such a trial as a litigant in person without legal representation. He has had a difficult professional, personal and medical history since the beginning of the history to which I have referred in this judgment, and indeed it is clear from his demeanour in court which he has himself described as emotional that Mr Elliott is under great emotional stress, for which I would, speaking personally, make appropriate allowance.[22]Nevertheless it is clear from Mr Elliott's submissions that he regrets nothing of the allegations that he has made against the appellants over the years. In fact he has persisted in making them, for instance to the Cumbrian police and to the CAA, but also he is convinced in his own mind that he is fully entitled to act as he has been acting and he submits that he has been acting fully within, if I may put it that way, the terms of the injunction, that is to say that everything that he has been doing lies outside the terms of the injunction so that he has committed no contempt of court in anything that he has done. Mr Elliott may have a difficult path in pursuing those submissions, but that is not a matter for us. That is a matter for trial. What is clear, however, from Mr Elliott's submissions is that his main concern today, as probably it was before HHJ Holman, is that he should have a fair trial. He considers that he was unjustly committed to prison on the last occasion and he does not want that to happen again. He is desperately concerned to obtain legal representation if he can. I am now in a position therefore to revert to the matter raised by Mr Elliott before us as to the possibility that he has enlisted the sympathy and support of solicitors and counsel to assist him. The way he put it to us was that he had enlisted their support for a possible application for an appeal out of time in respect of his last committal for contempt of court.[23]A question arises about whether that sympathy and support could be extended to the forthcoming trial. If so, Mr Elliott is very concerned that he should not lose that sympathy and support by reason of any difficulty that the solicitors and counsel concerned might be under in making the journey to Manchester rather than to remain in London, where it appears that they are based. He has therefore requested the possibility of his trial taking place in London. Mr Sephton immediately took instructions on that question and he was able to tell the court that if it did mean the difference between representation or no representation for Mr Elliott, then for their part the appellants would be entirely wiling to have the trial moved to London. Indeed Mr Sephton's position was that representation for Mr Elliott would only assist matters in the forthcoming trial.[24]So there is the possibility of that eventuality but it remains to be seen whether Mr Elliott can turn the sympathy and support of which he has told us into a firm commitment to assist him at a trial for his committal.[25]In the meantime the question remains what is to be made of HHJ Holman's order? In my judgment there was no justification whatsoever for the vacation of trial. It is clear that Mr Elliott considers himself to be entitled to act as he has been acting. There is every danger therefore that he will continue to do so with potential substantial damage being done to WADI and to the publicly quoted company of Stobart. It is clear that this matter ought to be dealt with promptly, as promptly as is fairly possible. It is clear that King J considered that a fair trial could be held by no later than 14 July. As it is the fixture has been made for two weeks later.[26]It is clear from the facts which I have stated and from the attendance note made by the appellants' solicitor that, so far as the appellants' case is concerned and Mr Elliott's knowledge of that case, everything is as it should be. That is to say all the documents obtained from the Cumbrian police and the CAA have been served on Mr Elliott and that has been the case from at latest 22 June. It is clear that the claim form has been twice amended by reference to the documents disclosed. It is clear from that amended and re-amended claim form that each of Mr Elliott's documents, letters written to the Cumbrian police or to CAA, has been identified by its date in the claim form. There is in truth, although the total number of documents obtained from the police and the CAA run to several files, no difficulty at all in extracting from those pleadings the identified documents.[27]Mr Elliott of course is familiar with them. They are his own documents. They are the documents that the appellants rely upon. They rely by way of evidence only on the first of the affidavits of Mr Howarth, possibly now on the fourth affidavit too which they have served pursuant to the judge's order whose function is pursuant to that order to re-identify, but also in addition to do so by page numbering, the relevant documents that they rely on which they have obtained from the CAA.[28]So the claimant's case is clear. Mr Sephton has undertaken to serve a skeleton argument seven days before the trial date and has been ordered to provide a core bundle. No doubt that would also be possible and could be made by a date which can be discussed. There is the matter of the defendant's desire for further documents from the CAA and the SFO, but that was not critical to the judge's vacation of the trial date. There is no reason whatsoever to wait until 27 July for any such application to be made. If Mr Elliott needs further documents from the CAA there is also talk about tapes of an interview of his which the Cumbrian police have which he has not been willing to allow the Cumbrian police to disclose. If Mr Elliott wishes to obtain such further documents from the CAA or the SFO he can readily identify the necessary files in a short witness summons, as the appellants were able to do in their witness summons, and he says that there are further documents to be had from the CAA and an important file of documents from the SFO. That remains to be seen. There is no evidence before us of that. Mr Elliott has put no evidence before the court at any time. He submits, he tells us, that he has had telephone conversations with the SFO in which the SFO has said to him, albeit not in writing but on the basis of matters which he has brought to their attention that he has evidence of serious fraud. He says that the SFO has sent a file to the Cheshire police not to the Cumbrian police. I am not in a position to say whether there is any substance to those allegations. I fear that Mr Elliott is in the habit of saying some wild things in his emotional state which may well not have substance but it is possible that there is nevertheless some substance to what he says. If there is, he can if he wishes obtain such material from the SFO and any other material which he seeks from the CAA or even from the Cumbrian police. If he wishes to do that he should do it promptly.[29]In the meantime, however, I can see no reason at all for the judge's peremptory vacation of a trial date. It is clear from the Civil Procedure Rules and the jurisprudence pursuant to them, that the fixing of the trial date was an important matter. The vacation of a trial date is always an important matter. It is always a matter of potential prejudice to one or other of the parties and I can see no reason for the judge's order. In my judgment the trial date of 27 July should be restored. It may nevertheless be that Mr Elliott can obtain representation to assist him at trial. It may be that that representation is only available to him in London. It may be that such representation is not precisely available to him on 27 July whether in Manchester or in London. It may be that if Mr Elliott can present to the court (it would have to be to the trial court, not to this court) good evidence that he can obtain representation but only under circumstances somewhat different from the trial date in Manchester of 27 July that Mr Elliott can persuade a judge or indeed the appellants may be willing, without a hearing, to agree a somewhat different trial date. But plainly the appellants would not be willing to allow this matter to go off indefinitely into the long grass and they will plainly want to have some firm assurance that the possibility of representation is not a mere possibility but a genuine reality and that, however desirable such representation may be, it will not be made the occasion for any unnecessary delay in the hearing of the committal application.[30]Therefore on that basis, and for these reasons, I would allow this appeal. I would quash paragraph 1 of the judge's order. Paragraph 2 of the judge's order I think has already been complied with. The substance of paragraph 3 can perhaps be discussed in a moment with the assistance of the parties. As for paragraph 4, the defendant has that permission and can make of it what he will, but in my judgment if he does wish to pursue an application for third-party disclosure it must be done without delay and it must not be made the cause of any delay to trial.[31]For those reasons I would allow this appeal to that extent.[1]I agree that the appeal should be allowed to that extent. It seems to me that, possibly because of the rather unprepared and impromptu manner in which the matter came before HHJ Holman on 27 June, he made the order which he did without a full appreciation of the way in which the matter stood and the extent to which the case had been prepared and had also been notified to Mr Elliott in the shape at least of the draft re-amended Particulars of Claim.[2]Like my Lord, it seems to me that in the light of that and of the overriding objective and the then still recent order of King J fixing the trial, fixing the date and the subsequent fixing of the actual fixture, it was not right to vacate the trial date and convert it into a directions hearing only.[3]For the record, the only other point I would add is that, as I understood it from Mr Elliott, his wish to appeal against the original committal order made by HHJ Main is associated with a wish to appeal against the original or at any rate the final injunction order made by HHJ Tetlow on 15 March 2010, which it would be logical for him to challenge as well. That, he told us, was part of what he had hoped, or still hopes, to get representation for as a combined application to this court in which, in relation to the injunction, permission to appeal would be required, and in relation to both an extension of time would be required. The fact that that is also involved makes no difference to this appeal, and I simply mention it because that is how I understood Mr Elliott to approach the matter of things that he already wishes to appeal. As it is, I agree with my Lord that the 27 July should be regarded as effectively the trial date for the committal application subject to the possibility that the venue might be changed as indicated.

Order

Application for permission to appeal granted; Appeal allowed in part