“At the conclusion I will offer you an interview. Any such interview will be conducted under the guidelines of the Police and Criminal Evidence Act. It will be under Caution at a location and time of your choice. In the meantime you are at liberty to write a letter to me with advice and guidance of your lawyers. I must caution you though that you do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
“UNDERTAKING BY THE CLAIMANT TO W.A. DEVELOPMENTS INTERNATIONAL LIMITED The Claimant provides the following Undertaking provided that he is not subject to any defamatory or slanderous statements coming to his attention from the Defendant or his companies. If the Claimant does receive knowledge of such statements he will put into writing to the Defendant his concerns and ask for a retraction within 7 working days of such statements. If he does not receive such a retraction then the Claimant is at liberty to defend himself as he seems fit in the circumstances. I, PETER ELLIOTT, on behalf of myself, my servants, agents or howsoever (to which all reference to “I”, “myself” or like expressions in these undertakings refer), UNDERTAKE FROM THE DATE HEREOF: A. that I shall not, whether by myself or by procuring, counselling or encouraging others to do so, make, permit, repeat or cause to be repeated, any allegation whatsoever to any third party, whether directly or indirectly, in whatever form or medium howsoever, whether orally or in writing (and if in writing in any medium whatsoever, including any electronic form): a. that W.A. Developments International Limited (“WADI”), any associated company or firm, or their respective directors, employees or agents or howsoever, have acted in respect of the operation of any or all aircraft (be they fixed wing or otherwise), in a manner which is in breach of any statutory or other regulatory requirements of either the United Kingdom or the United States of America, or any other country, and/or which is otherwise contrary to the law of any country, save as I may be required to do so by compulsion of law. b. is otherwise defamatory of W.A. Developments International Limited, any associated company or firm, its directors, employees, servants or agents or howsoever; c. with the intention of causing harm to the legitimate financial business interests of W.A. Developments International Limited, any associated company or firm, its directors, employees, servants or agents or howsoever. B. To keep the facts of this dispute, this settlement and the terms of the settlement confidential and not to repeat the same to any third party without the express written permission of WADI and signed by a director save that I shall be at liberty, in answer to a specific question concerning this dispute, to respond that it has been settled amicably between the Claimant and the Defendant. C. To repeat these undertakings to a court of competent jurisdiction if required by WADI to do so. These undertakings are given in full and final settlement of any previous allegations I made or may have made of a like nature to those in paragraphs A(a), (b) and (c) above.”
“I have absolutely no doubt therefore and I am certainly satisfied on the criminal standard of proof, the Defendant engaged in repeated defamatory behaviour in the context of these several allegations made in the disclosures to both Mr Bates and Mr Keys with the specific intention of causing harm to and interference with the legitimate business interests of WADI and its associates and directors, employees and others.”
“23. The approach to be adopted on applications for permission has been considered in a number of authorities. The principles that emerge are the following: i) In order for an allegation of contempt to succeed it must be shown that " in addition to knowing that what you are saying is false, you had to have known that what you are saying was likely to interfere with the course of justice” - see Edward Nield v. Loveday[2011] EWHC 2324 (Admin) ; ii) The burden of proof is on the party alleging the contempt who must prove each element identified above beyond reasonable doubt - see Edward Nield v. Loveday (ante); iii) A statement made by someone who effectively does not care whether it is true or false is liable as if that person knew what was being said was false - see Berry Piling Systems Limited v. Sheer Projects Limited[2013] EWHC 347 (TCC) , Paragraph 28 - but carelessness will not be sufficient - see Berry Piling Systems Limited v. Sheer Projects Limited (ante), Paragraph 30(c); iv) Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor- see Malgar Limited v. RE Leach (Engineering) Limited[1999] EWHC 843 (Ch) , Kirk v. Walton[2008] EWHC 1780 (QB) , Cox J at paragraph 29 and Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(a); v) Before permission is given the court should be satisfied that a) the public interest requires the committal proceedings to be brought; b) The proposed committal proceedings are proportionate; and c) The proposed committal proceedings are in accordance with the overriding objective - - see Kirk v. Walton (ante) at paragraph 29; vi) In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective - see - Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(d); vii) In assessing whether the pubic interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker's understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements - see KJM Superbikes Limited v. Hinton[2008] EWCA Civ 1280 , Moore-Bick LJ at Paragraphs 16 and 23; and viii) In determining a permission application, care should be taken to avoid prejudicing the outcome of the application if permission is to be given by avoiding saying more about the merits of the complaint than is necessary to resolve the permission application - see KJM Superbikes Limited v. Hinton (ante) at Paragraph 20.”
“6. Mr Elliott alleged that WADI and I had acted unlawfully in relation to its aviation activities. He alleged to the Civil Aviation Authority (“CAA”) that WADI had committed many breaches of the Air Navigation Order. As a result of Mr Elliott’s allegations, WADI the company and I as an individual were put to much trouble and expense. An officer of the CAA interviewed me under caution. The CAA required substantial disclosure from WADI which was costly of time and resources. In the event the CAA concluded after a long and detailed investigation that it would close its files and take no further action. I produce marked “WAT 1” the letter the CAA wrote to our solicitors in this regard.” [Emphasis added.]
“9. At the start of the investigation by the Civil Aviation Authority (“CAA”) I was interviewed by Daniel Crawley who was an officer of the CAA. At the time I understood that I was being interviewed under caution. Following my interview, my then solicitors, Pannone LLP, investigated the matter and ascertained that the interview had not in fact been carried out in accordance with thePolice and Criminal Evidence Act 1984 (“PACE”) and had not in fact been an interview under caution. Following that discovery Pannone LLP corresponded with Mr Crawley to supply further details he required from me. At all times I fully co-operated with the CAA. 10. I accept that the statement that I was “interviewed under caution” is inaccurate; however I did honestly believe that this was the case and there was no intention on my part to mislead the Court. I was interviewed by an officer of the CAA and following that interview I fully co-operated with the CAA’s investigation into the allegations made to the CAA by the Defendant.”
“12. The issue of whether I was under caution or not at the time of my interview is of peripheral relevance to the purpose of my witness statement. The facts remain that I was interviewed by an officer of the Civil Aviation Authority (“CAA”), that I complied fully with the CAA’s investigation into the allegations made by the Claimant and that at the conclusion of its investigation the CAA chose not to take any further action.”
“7. Mr Elliott was interested in purchasing from me a property known as “Pinewood”
“12. This statement is an accurate reflection of what I believed at the time and continue to believe. I continue to regard the Defendant’s allegations of aviation criminality against me personally and my business as being harassing and wholly unfounded. I have consistently denied the Defendant’s allegations throughout the course of the proceedings between the parties. As I have previously explained the Claimants were investigated by the Civil Aviation Authority following a complaint made by the Defendant. The Civil Aviation Authority investigated the complaint fully, carrying out interviews of various employees and directors of the Second Claimant, and concluded that no further action should be taken in respect of the Defendant’s complaint.”
“38. In my judgment, Mr Elliott has taken the part of this sentence on which he relies out of context. The key point is that Mr Tinkler was saying that he regarded the allegations as without substance. This was an expression of subjective opinion. Thus the real question to be answered is whether Mr Elliott has demonstrated a sufficiently strong prima facie case that an honest man in the position of Mr Tinkler could not have honestly held such an opinion. In my judgment he has for the following reasons. 39. The substance of Mr Tinkler’s evidence in answer is that (a) he has consistently denied wrong doing; (b) the CAA investigated Mr Elliott’s allegations and concluded that no further action should be taken but (c) Mr Elliott continues to assert the truth of the allegations. In my judgment the reliance by Mr Tinkler on the decision of the CAA not to prosecute is not of itself either a sufficient or necessary basis for an assertion that the breaches of the Air Navigation Order alleged did not in fact occur or as a foundation for the claimed belief. As I have said already, the CAA concluded only that in its view there was insufficient evidence to provide a realistic prospect of conviction. In my judgment whether breaches had occurred (and were in truth known to Mr Tinkler to have occurred) has to be considered in the light of the whole of the evidence relied on by Mr Elliott. 40. Mr Elliott alleges and it was not disputed before me that (a) WADI operated a light twin jet and a helicopter, both of which were registered on the US Register, (b) that as a matter of UK Air Law, the UK owner of a foreign registered aircraft is not permitted to use it for revenue earning operations without an AOL, (c) WADI did not have such a licence and thus (d) every time WADI caused or permitted either the jet or the helicopter to be chartered to a third party a breach of the relevant provisions of the Air Navigation Order occurred. Mr Elliott maintains that Mr Tinkler and other senior WADI managers very well knew all this. 41. The evidence that Mr Elliott relies on is i) 24 invoices raised by WADI for the charter of the aircraft to subsidiaries and independent third parties for revenue totalling in excess of£435,000 ; ii) a report to Mr Tinkler from Robert Muckle Solicitors sent to Mr Tinkler by that firm under cover of a letter dated6th December 2005 , concerning the operation of the aircraft that included the advice that “ … under the [Air Navigation Order] 2005 … there is a general prohibition on aircraft registered outside of the UK carrying passengers or cargo in return for payment … this means that as currently structured WADI could not operate the business it intends [maximising the utilisation of the aircraft with a view to generating a profit] without breaching the terms of the ANO 2005 …”, and that there must be no charging within the Group for use of the aircraft; iii) a minute of a board meeting of WADI that took place on13 March 2007 which is signed by Mr Tinkler and which refers to allegations made by Mr Elliott concerning illegal public transport flights in respect of which advice had been received from the FAA that some of those flights might have been contrary to FAA regulations; iv) the letter from Mr Crawley to Mr Tinkler of12 July 2007 that I refer to earlier in this judgment which records a statement by Mr Tinkler to the effect that he had thought he was legally entitled to charge for the use of the aircraft but appreciated that he was mistaken and had invoiced back the companies that had paid for use of the aircraft and v) the credit notes that were all issued on13 March 2007 . 42. In my judgment this evidence establishes a sufficiently strong prima facie case that the alleged aviation offences had been committed by WADI in the period covered by the invoices – that is between not later than23 September 2005 and not later than13 March 2007 . Although the letter from Mr Crawley suggests that Mr Tinkler was operating under a genuine misapprehension, that is not consistent with the contents of the report from Robert Muckle that was sent to Mr Tinkler direct in December 2005. Whilst 4 of the invoices predate that letter, the remaining 20 postdate it. This is not explained in the evidence filed by Mr Tinkler in answer to the application. Although Mr Elliott did not formally cite the ANO to me, the Stobart Defendants did not suggest that to charter an aircraft operated by them in the UK that was registered on the US Register without an AOL was not an offence under the ANO. Thus I conclude that a sufficiently strong prima facie case has been out. 43. Given that I am satisfied that a strong prima facie case has been made out that the relevant statement was false and was known to be false, I can readily infer that a strong prima facie case has been made out that Mr Tinkler knew that the false statement was likely to interfere with the course of justice, given that the statement was made for the purpose of maintaining his claim to the interim injunction. ”
“It is understood from the Department of Transport that no permission is required where the operator of an aircraft registered outside the United Kingdom is a company which is a member of a group of companies, where it intends to use that aircraft solely for the purpose of carrying passengers in the group and where the monies passing between companies are wholly internal to the group thus not constituting the kind of valuable consideration operation intended to be caught by the article: individual cases should be checked.”
“Pannones submitted on WADI’s behalf to the CAA that in the circumstances set out above no offences had been committed given (a) a proper reading of the ANO (on which submissions were made) and given the (very different) mischief which it was intended to prevent (b) in the light of the position confirmed by the Department of Transport and (c) in the light of the particular circumstances [relating to the raising of the invoices set out in his witness statement] ”
“17. I wish to comment on two suggestions that Mr Elliott has made as to why he is entitled to ignore the promises he made in July 2007. (a) He alleges that I blackmailed him into agreeing to the undertakings he gave. The allegation that I blackmailed him is totally untrue. At the time, Mr Elliott was legally represented. I point out that Mr Elliott has not sought to set aside the agreement on the grounds of duress or otherwise. (b) Mr Elliott may allege that he has been the subject of defamatory statements and therefore he is entitled by the terms of his promise to make any allegations he chooses. Mr Elliott has not particularised the defamatory statements about which he complains. He has not, as far as I know, put his concerns into writing and asked for a retraction (as he is required to do under the terms of his promise). He has simply written a letter in which vague allegations are made, requiring a published apology and threatening proceedings, which he issued in very short order.” [Emphasis added.]
“It has come to my attention that you have slandered me and also made defamatory comments about me to now several parties. I offer you seven days to wholly retract and apologise to me for the following false statements that you have made to the above mentioned parties: 1. That I flew an Augusta helicopter for you unlawfully. 2. That I am responsible for the criminal aviation activities that you are under investigation for through poor advice from myself. 3. That I was sacked from my position with WADI. 4. That I did not on numerous occasions advise you of your criminality and urged you to cease it. 5. That I was not acting in the capacity as Aviation Director for WADI. All of the above statements you have made to several parties are wholly false. I offer you seven days to unreservedly retract these false statements and Undertake to me that they will not be repeated.”
“Mr Elliott states that Mr Tinker has been held to misrepresent documents. I assume that in making this allegation Mr Elliott is relying upon the judgment of Mrs Justice Sharp of15 March 2012 in which she indicated Mr Tinkler's his witness statement dated24 November 2008 misrepresented a letter written by Mr Elliott dated18 August 2008 . This however was an isolated oversight and Mr Elliott's suggestion that numerous documents have been misrepresented by Mr Tinkler is incorrect.”
“Once again there was no mention of the 2007 email. Moreover the letter to which [Mr Tinkler] referred (and which he did not exhibit) was misrepresented.”
“I am satisfied that Mr Elliott has demonstrated a sufficiently strong prima facie case that the assertion that his allegations were false and known to Mr Howarth to be false to pass the threshold test for the grant of permission by reference to the material relied on by Mr Elliott that is summarised above in relation to Allegation 4. Mr Howarth's response at Paragraphs 35-38 of his statement of18th February 2013 does not address this material satisfactorily, or in most cases, at all. I leave to the end the issues concerning proportionality and the public interest to a later stage in this judgment.”
“ Save that it has always been accepted by Andrew Tinkler since his initial interview with the CAA that invoices were sent to other companies within the Stobart group, and/or with shared ownership, in relation to their use of the air craft owned by WADI, my position is and remains that Claimant' s allegations are untrue and outrageous.”
“I continue to regard [Mr Elliott’s] allegations of aviation criminality…. as being totally unfounded.”
“It transpired that certain of the inter-group invoicing transactions between the Claimants [Stobart group companies], which were issued under a structure that the Defendant [Mr Elliott] had advised us to set up, were not permissible under aviation regulations. When this was pointed out to me I agreed to reverse the transactions in question and the Civil Aviation Authority accepted that as a suitable solution.”