“3. Was Mr Tinkler in breach of his fiduciary and/or contractual duties (and if so what is the nature and seriousness of the breach) by reason of any or all of the following? - a. His proposal in relation to the Flybe transaction. b. Speaking to the Claimant’s significant shareholders and criticising the Board’s management and the Group’s business and agitating for the removal of Mr Ferguson. c. Entering into an unlawful means conspiracy with any of Mr Hodges, Mr Woodford, and/or Mr Day. d. Improperly sharing Confidential Information (as specified at paragraphs 21, 22 and 33(c) of the Particulars of Claim). e. Writing to shareholders and employees on 8 and9 June 2018 respectively. f. Orchestrating: i. The writing of a letter of support from the Executive Leadership Team. ii. A petition by group employees. g. Making comments about the level of his remuneration in comparison to the previous Executive Chairman, who is a woman, and/or using inappropriate language in so doing. 4. Were the Four Directors in breach of their fiduciary duties by reason of any or all of the following? - a. Attempting to use Article 89(5) to remove Mr Tinkler as a director in February 2018. b. Establishing the Board Committee. c. Issuing the29 May 2018 RNS. d. Declining to put Mr Day’s name forward for the AGM Ballot. e. Purporting to dismiss Mr Tinkler as an employee on14 June 2018 . f. Purporting to remove Mr Tinkler as a director on14 June 2018 . g. Causing the transfer of shares from Treasury to the EBT. h. Not causing shares which should have been vested in Mr Tinkler and other employees to be transferred to them in advance of the AGM. i. Not putting Resolution 4 to re-elect Mr Tinkler to a vote at the AGM. j. Casting proxy votes from shareholders who had indicated that they wished to abstain on Resolution 4, against the A.O.B. resolution to elect Mr Tinkler. k. Purportedly removing Mr Tinkler as a director again immediately following the AGM on7 July 2018 .” a. His proposal in relation to the Flybe transaction. b. Speaking to the Claimant’s significant shareholders and criticising the Board’s management and the Group’s business and agitating for the removal of Mr Ferguson. c. Entering into an unlawful means conspiracy with any of Mr Hodges, Mr Woodford, and/or Mr Day. d. Improperly sharing Confidential Information (as specified at paragraphs 21, 22 and 33(c) of the Particulars of Claim). e. Writing to shareholders and employees on 8 and9 June 2018 respectively. f. Orchestrating: i. The writing of a letter of support from the Executive Leadership Team. ii. A petition by group employees. g. Making comments about the level of his remuneration in comparison to the previous Executive Chairman, who is a woman, and/or using inappropriate language in so doing. a. Attempting to use Article 89(5) to remove Mr Tinkler as a director in February 2018. b. Establishing the Board Committee. c. Issuing the29 May 2018 RNS. d. Declining to put Mr Day’s name forward for the AGM Ballot. e. Purporting to dismiss Mr Tinkler as an employee on14 June 2018 . f. Purporting to remove Mr Tinkler as a director on14 June 2018 . g. Causing the transfer of shares from Treasury to the EBT. h. Not causing shares which should have been vested in Mr Tinkler and other employees to be transferred to them in advance of the AGM. i. Not putting Resolution 4 to re-elect Mr Tinkler to a vote at the AGM. j. Casting proxy votes from shareholders who had indicated that they wished to abstain on Resolution 4, against the A.O.B. resolution to elect Mr Tinkler. k. Purportedly removing Mr Tinkler as a director again immediately following the AGM on7 July 2018 .”
“785. The next matter of challenge is their decision to issue the 29 May RNS. This followed the 25 May RNS with its more neutral wording, as revised following Mr Tinkler's objection to certain tendentious statements during the Board earlier that day. I have set out the material terms of the 29 May RNS in section 3 above. Mr Tinkler says that, as the earlier one had fulfilled the Company's regulatory obligations, the 29 May RNS was unnecessary and misleading. He says that, if anything further needed to be said on the issue of the chairmanship, it should have been said in explanatory statements (reflecting each side's position) in advance of the AGM. As I have noted, Mr Tinkler has commenced libel proceedings against the Four Directors on the back of the 29 May RNS. 786. It is clear that the terms of the 29 May RNS reflected the advice of Mr Arch (of Stifel) on 26 May that a "hard-hitting announcement" was required. The RNS was certainly that with its references to the "challenges" which Mr Tinkler had posed "in the recent past". 787. It is not for me to trespass upon matters which are to be decided in the libel proceedings. I have well in mind Mr Hodges' view about the RNS, which is that it was a "fundamentally dishonest" document. At the time, having read it that day, Mr Brown also thought it was "misleading" though, as the Company points out, Mr Tinkler may well have encouraged him to express that view. I have to decide, instead, whether the Four Directors acted in breach of fiduciary duty in causing it to be issued. 788. In my judgment, it was unwise and inappropriate for the Four Directors to sanction the 29 May RNS with its bullet point list of allegedly recent challenges. There were certainly some matters of which all shareholders voting at the AGM probably ought to have been made aware, in advance of the AGM, in terms of the recent background to Mr Tinkler's challenge to Mr Ferguson. Having had to consider those at very great length for the purposes of this judgment I can see that it would not have been a straightforward task to summarise them in a circular. But such a summary could certainly have set out the majority's view as to the manner in which Mr Tinkler had gone about securing the shareholder support mentioned in the 25 May RNS and possibly also mentioned his recent claims for additional remuneration, his disappointment on which really seems to have marked the start of him confiding more in his loyal shareholders than in the Board (one of the bullet point "challenges" in the 29 May RNS referred to his proposal for the ex gratia distribution of shares from the EBT). The shape of a document that might have been appropriate in the circumstances can be envisaged by contemplating what the Board might wished to have said to counter the impression created by Mr Tinkler's later Letter to Shareholders (that his position stemmed from genuine and considered disagreement within the Board on matters of corporate direction). 789. But the relevant part of the 29 May RNS was more inflammatory than that (and played a large part in prompting Mr Tinkler to write the Letter to Shareholders) and included within its list of "challenges" matters which were not really germane to this key issue for the shareholders' vote. For example, the last bullet referred to his proposal within Project Wright ("a proposed related party transaction associated with the recent aborted airline transaction") which, I have decided, involved no wrongdoing on his part. And the first bullet ("settlement of contractual issues arising from a previous related party transaction when Mr Tinkler was CEO") related to a contractual claim brought by the Company against Mr Tinkler in respect of a tax indemnity. The Company had brought that claim in 2017 and that it did not relate to something "in the recent past" is illustrated by the fact that, on16 November 2018 and while the trial before me was proceeding, Mr Justice Phillips struck it out, I understand, on limitation grounds (although I gather that limited permission to appeal has since been granted). All that said, Mr Tinkler accepted in evidence that other parts of the RNS (addressing the "Management's achievements") could fairly be read as reflecting favourably upon his time as CEO. 790. However, it does not follow from the conclusion that the 29 May RNS was inappropriate that the Four Directors acted in breach of fiduciary duty in causing it to be published. They had obtained external legal advice upon it as well as advice from the brokers. Mr Brady said in an email on26 May 2018 (and therefore between the two RNS's) that the Chief Executive of the Civil Aviation Authority had been "asking me what is going on re the founder." And, although most of the bullet points of "challenge" were of suspect relevance, the point they wished to get across was that "Mr Tinkler has destabilised the Group at this crucial time for the business by his stated intention to vote against the Chairman". I cannot criticise them for holding that view, particularly in the light of my other findings, and the real question is whether or not the expression of it in an RNS (with some dubious points in support of it) constituted a breach of fiduciary duty. 791. In my judgment, it does not follow that the inflammatory aspects of the 29 May RNS represented a breach of duty by the Four Directors. The only relevant duty, as I see it, is their duty to act in good faith and in the best interests of the Company. I cannot see that the sufficient information duty has any application. Where it applies, that duty requires the provision of sufficient information but cannot really be sensibly applied so as to prohibit the provision of too much of it. If too much information is provided by the directors, to the detriment of the Company, then (leaving to one side the law of defamation for any actionable untruths within it) that is a matter best addressed by reference to what Arden LJ described in Item Software v Fassihi as the strong and flexible duty of loyalty. 792. As to that first duty, there are two reasons why I have concluded the Four Directors were not in breach of it. The first is that I find that each of them thought that it was in the best interests of the Company to publish the RNS. I have already referred to Mr Coombs' view about the need for the 29 May RNS in addressing, on the question of an intention to injure within Issue 2, what he perceived to be Mr Tinkler's aims. All four of them considered that his challenge to Mr Ferguson (with its repercussions in respect of Messrs Wood and Coombs) was destabilising the Company. 793. The second reason is that the terms of the RNS, though inappropriate in the respects mentioned above, do not justify the conclusion (by way of an objective check upon their subjective thoughts) that no reasonable director would have agreed to it. This second reason is reinforced by the advice the Four Directors received at the time and by the absence of any evidence that it damaged the Company. In addition to saying it damaged him personally, Mr Tinkler argued, by reference to Mr Grimes' evidence and the "surprise and regret" at the RNS expressed in a letter from three executives in the Aviation Division, that it did damage the Company. Mr Grimes referred to unsettlement amongst employees and questions from brokers and customers of the Jet Centre. Mr Tinkler also points to the evidence of Mr Whawell in relation to the general disquiet expressed at the ELT event in Manchester on 5 and6 June 2018 . 794. However, it is difficult to attribute employee disquiet to the 29 May RNS when I find it is just as likely, if not more likely, that such concerns on the part of employees and customers, about what was going on at the head of the Company, would have been generated by the terms of the earlier 25 May RNS. That earlier RNS would have told anyone who read it about the potential for upheaval within the Board and that Mr Tinkler was opposed to Mr Ferguson. It must be remembered that the gravamen of Mr Tinkler's challenge to the 29 May RNS is that it was an unnecessary attack upon, and damaging to him personally.”
“The Claimant's behaviour was disruptive; and, in relation to the challenges identified [above] unreasonable and his opposition to the re-election of the Chairman was regrettable and risked destabilising Stobart.”
“(a) The Claimant destabilised the Board at a crucial time for the business; and/or (b) The Claimant required the Board to deal with challenges, including: i. the settlement of financial issues arising from a previous related party transaction when the Claimant was CEO; ii. a proposed selective buy-back of part of the Claimant's stake in [Stobart]; iii. a proposed additional ex-gratia bonus for the Claimant of shares then worth some£8 million ; iv. a proposed buy-out of Stobart when the share price was in the range of 100p to 120p; and/or v. a proposed related party transaction associated with a recent aborted airline transaction.”
“Being said to be disruptive or unreasonable or to be behaving regrettably in the context of a boardroom dispute is part of the give and take of business life. If it is defamatory at all (as to which I would not wish to differ from the judge) it is very much at the lower end of the scale.”
“How the actions were structured, when they were commenced, and the identities of the parties, have no bearing on the fundamental point: both actions concerned the same essential dispute between directors of Stobart. The Malicious Falsehood Action, concerned with the publication of the Announcement, focused on only a small part of the overall dispute.”
“Mr Tinkler submitted that, as the Stobart Action was brought by the company and the Malicious Falsehood Action is brought against the directors personally, the Malicious Falsehood Action is not duplicative. The above analysis shows that this submission must be rejected. It is a distinction without any substance. So far as concerns publication of the Announcement, Mr Tinkler is complaining about precisely the same acts in the Malicious Falsehood Action as he did in the Stobart Action. The only difference is that in the Stobart Action, the company was being held vicariously liable for the actions of the Four Directors and in the Malicious Falsehood Action he seeks to establish personal liability of the Four Directors plus Mr Laycock. The fact that the directors had no direct financial interest in the outcome of the Stobart Action and were not themselves likely to be at risk of any third-party costs order is not material. Nor does it matter that the Malicious Falsehood Action was commenced before the Stobart Action (see [41] above).”
“I accept that there might be certain limited issues that would arise in the Malicious Falsehood Action which were not resolved in the Stobart Action. Principally, as I have noted, the truth or falsity of Malicious Falsehood Meaning (b) was not an issue in the Stobart Action. Also, there might be scope for subtle differences in the states of mind of the Defendants. In the Stobart Action, the issue was whether, when the Four Directors published the Announcement, they were acting bona fide in the best interests of the company. In the Malicious Falsehood Action, the question would be whether each Defendant published the Announcement maliciously. However, the overlap between these two issues is so substantial that practically there is little difference. I suppose it is conceptually possible to act honestly in what the director believed was in the best interests of Stobart and yet still be found to have a dominant intention to injure Mr Tinkler, but this is wholly speculative and I am doubtful whether that would be sufficient to establish malice if the Court found that the defendant honestly believed what he published to be true.”
“For the reasons I have set out above, permitting Mr Tinkler to proceed with the Malicious Falsehood Action would involve the Court permitting him to relitigate a large number of the issues that were raised (and adjudicated upon) in the Stobart Action and Judgment. In almost all of those instances, Mr Tinkler would be making a collateral attack to findings of fact made in the Stobart Judgment. The case that Mr Tinkler wants to advance in the Malicious Falsehood Action could, and in my judgment, should have been brought in the Stobart Action.”
“Mr Tinkler’s pleaded case is vague and speculative and consists entirely of generalities. Against the very real problems he confronts in relation to causation, it will not do. But even if the causation issue is ignored, Mr Tinkler’s pleaded case still does not explain how an allegation that he had destabilised the board of Stobart and had presented a series of challenges to the board is more likely than not to cause him pecuniary damage.”
“If the Announcement had been the only thing of significance publicly to affect Mr Tinkler, then an inferential case based on a drop-off of offers of directorships or investment opportunities might have had some prospect of success. But that was not the position. The Announcement was an early incident in the wider battle, played out publicly, between Mr Tinkler and the other directors of the board of Stobart. Objectively judged, the very public sacking of Mr Tinkler on14 June 2018 is much more likely to have caused pecuniary damage to Mr Tinkler than publication of the Announcement and then, subsequently, even that damage was more likely than not to have been eclipsed by the publicity that the Stobart Judgment received. After the Stobart Judgment, any pecuniary damage that Mr Tinkler says was likely to have been caused to him was, absent a compelling alternative explanation, likely to have occasioned by the Stobart Judgment. In order for his pleaded case on the likelihood of pecuniary damage to disclose reasonable grounds for bringing his claim, Mr Tinkler had to explain a way - or a mechanism - whereby an RNS, in the fairly anodyne terms of the Malicious Falsehood Meaning, retained any real potency to cause pecuniary damage after Mr Tinkler’s public dismissal from Stobart and the subsequent adverse findings publicly made against him in the Stobart Judgment, including that he had acted in serious breach of his fiduciary duties as a director of Stobart.”
“(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter’s case[1982] AC 529 , Lord Hoffmann in the Arthur J S Hall case[2002] 1 AC 615 and Lord Bingham in Johnson v Gore Wood & Co[2002] 2 AC 1 . These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter’s case. Both or either interest may be engaged. (2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse: see Bragg v Oceanus[1982] 2 Lloyd’s Rep 132 ; and the court’s power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur J S Hall case. (3) To determine whether proceedings are abusive the court must engage in a close merits based analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court’s process, see Lord Bingham in Johnson v Gore Wood & Co and Buxton LJ in Laing v Taylor Walton [2008] PNLR 11. (4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within the spirit of the rules, see Lord Hoffmann in the Arthur J S Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case[2004] Ch 1 ; or, as Lord Hobhouse put it in the Arthur J S Hall case, if there is an element of vexation in the use of litigation for an improper purpose. (5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris. To which one further point may be added. (6) An appeal against a decision to strike out on the grounds of abuse, described by Lord Sumption JSC in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd)[2014] AC 160 , para 17 as the application of a procedural rule against abusive proceedings, is a challenge to the judgment of the court below and not to the exercise of a discretion. Nevertheless, in reviewing the decision the Court of Appeal will give considerable weight to the views of the judge, see Buxton LJ in the Laing v Taylor Walton case, para 13.”
“3(1) In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage – (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
“The "collateral attack" point is a species (or "sub-set") of abuse of process. There is no general rule preventing a party inviting a court to arrive at a decision inconsistent with that arrived at in another case. The law of estoppel per rem judicatem (and issue estoppel) defines when a party is entitled to do this. Generally there must be an identification of the parties in the instant case with those in the previous case and there are exceptions. So far as questions of law are concerned, absent a decision specifically binding upon the relevant litigant, the doctrine of precedent governs when an earlier legal decision may be challenged in a later case.” “… the law does tolerate the possibility of apparently inconsistent decisions. The element of vexation is an aspect of abuse, the use of litigation for an improper purpose, trying to have repeated bites at the same cherry. The objectionable element is not the risk of inconsistency.”
“The basis of the rule in Henderson is the avoidance of multiplicity of litigation in relation to a particular subject or set of circumstances in order to avoid the prejudice to a defendant which inevitably results in terms of wasted time and cost, duplication of effort, dispersal of evidence and risk of inconsistent findings which are involved if different courts at different times are obliged to examine the same substratum of fact which gives rise to the subject of litigation. The rule is justifiable and justified as a matter both of common sense and common justice between the parties and it is the aspects of prejudice which I have mentioned which will usually render a second bite of the cherry worthy of the description "abuse of process." They are essentially objective considerations to which the particular circumstances of the parties will generally be irrelevant; hence the need for special circumstances if the full rigour of the rule is to be alleviated.”
“Of course, our client remains keen to clear his name. As matters now stand… , there is to be a trial in the Stobart Claim which will result in findings by the court on a range of issues. Moreover, the judgment is likely to show that your clients would not be able to seek to defend their publication on the grounds of alleged truth or qualified privilege (an action in breach of the fiduciary duties cannot be the subject of a defence of privilege). Plainly, the parties to this claim would wish to consider their positions in the light of the determination of the issues at that expedited trial. An outcome in our client's favour in that trial will show that he was not in breach of his duties.”
“MR TINKLER: I understand that, my Lord, and I think it is probably because, going back to originally we were focused, when we put this claim in on the particulars of claim, nine days after the RNS, so it was mostly focused on the RNS, and at the time - right? - you could not quantify the damage at that time, due to the fact that at that time I was still working for the company and it is the likely loss that that statement has caused me and the causation of that has caused me -- or the Stobart Group to sack me on the 14th June. That is what I say.”