“The Applicant do have permission to use and rely upon the Disclosed Documents for the purposes of: (i) an intended claim against Stobart Group Ltd (“Stobart Group”) to set aside the Judgment of HHJ Russen QC in proceedings brought by Stobart Group against the Applicant in the London Circuit Commercial Court under case number LM-2018-000113 (“the 2018 Proceedings”), including but not limited to any applications for interim relief in support of or in anticipation of those proceedings (“the First Proposed Claim”); and (ii) an intended claim against Stobart Group, Mr Warwick Brady (“Mr Brady”), Mr Iain Ferguson CBE (“Mr Ferguson”) and the Respondent in connection with the 2018 Proceedings and the Applicant’s dismissal as an employee of Stobart Group and removal as a director, including but not limited to any applications for interim relief in support of or in anticipation of those proceedings (“the Second Proposed Claim”).”
“Mr Leiper submitted that I should strike the Conspiracy Claim and make a number of consequential orders including orders for costs. I decline to do so. On26 November 2020 Chief Master Shuman made an Order that all further proceedings in the Conspiracy Claim shall be stayed until this action had been concluded in its entirety and all rights of appeal had been exhausted. That point in time has not been reached and the stay continues in force until the Court of Appeal finally determine any appeal against the Judgment.”
“Mr Tinkler’s pleaded case before Leech J (the judge) was that new evidence that had been deliberately withheld from Judge Russen would have been highly material to the issues he had decided. It demonstrated that the witnesses had lied to Judge Russen, and was consistent with the existence of a pre-meditated plan to oust Mr Tinkler, which had been alleged before Judge Russen. Had the new evidence been disclosed, it would inevitably have changed Judge Russen’s approach to the evidence and the way he came to his decision. On7 June 2022 , the judge gave a 479-paragraph judgment dismissing Mr Tinkler’s claim to set aside Judge Russen’s judgment.”
“17. As will appear from the rest of this judgment, I have decided that Mr Tinkler’s appeal must fail. It is true that the judge approached his task in a somewhat unorthodox way, in that he started his treatment of each factual question by stating what Judge Russen had found as to that question. But he did not do so because he thought himself bound by what Judge Russen had decided, save where there was no new evidence on the point. He did so perhaps because he thought that Judge Russen’s findings provided a convenient starting point for each of the factual findings that Mr Tinkler had invited him to make. The judge had anyway to consider Judge Russen’s findings in order to determine materiality. Effectively, though, the judge put the cart before the horse. He considered (without retrying) the factual issues that Judge Russen had tried rather than starting with a consideration of the fraud issues that had been pleaded. The factual issues tried by Judge Russen ought only to have been re-considered in detail if the fraud action had succeeded before the judge, if Judge Russen’s judgment was set aside, and when a new trial of those issues was ordered (see Flower at [13]-[14] above). But it was the parties’ fault that this error occurred. 18. The question is whether it now lies in the mouth of Mr Tinkler to seek a retrial of the fraud action on the basis that SGL and the judge acceded to his own request as to the process he should adopt. I do not think it does. The judge was right to baulk at retrying the issues before Judge Russen on different evidence (as he said at [33] set out above). His task, as he said more than once, was “to hear and evaluate the new evidence and then decide whether [Judge Russen’s] findings could stand in the light of it”. 19. In the event, no damage was done by the unorthodox course urged upon the judge. It can be seen from a careful reading of the judge’s treatment of the 16 issues that he fairly considered whether the allegedly critical documents had been deliberately concealed from the court, and whether the witnesses had perjured themselves (which, in both cases, he found they had not). In doing so, he considered the evidence that the parties had asked him to consider, including, where necessary, evidence that had been before Judge Russen. When the court asked Mr Wardell to provide examples of where the exercise the judge had undertaken had led to the wrong result, he was unable to provide a single compelling submission.”
“16. To try and get to the bottom of the difference in outcomes between the 2018 Proceedings and the ET Proceedings, I undertook a full review of the 27 files of evidence in the 2018 Proceedings and 11 days of transcripts of the oral evidence and submissions and compared the same with the corresponding material in the ET Proceedings. 17. Over time, as I conducted this painstaking exercise, it gradually became clear to me that a number of highly relevant documents had been disclosed by Mr Soanes in the ET Proceedings that had not been disclosed by the Company in the 2018 Proceedings (the "Undisclosed Documents") [WAT2/2]. The Undisclosed Documents took the form of emails, attachments, text messages, WhatsApp messages and Telegram messages between Mr Soanes, Mr Brady, and others. 18. This was a huge task to undertake and took a significant amount of time. Initially, I conducted this review in consideration of harm that may have been caused to SCL and so with alternative proceedings in mind; I commenced a claim on behalf of SCL against Mr Soanes on8 September 2020 where I referred to the Undisclosed Documents (BL-2020-MAN-000083) but at that point I was unclear as to the extent of any fraud against the Court involving the Company. My review was an iterative process and as my analysis developed I realised that the Judgment had been highly tainted by the absence of the Undisclosed Documents. 19. I do not propose to address all of the Undisclosed Documents in this witness statement as they are detailed in the Particulars of claim, served in these proceedings on17 November 2020 . However, in summary the court should be aware that the Undisclosed Documents and Defence issued by the Company reveal that relevant WhatsApp messages had been deleted and messages sent over an encrypted messaging platform (Telegram) were not disclosed and now appear to have been removed. I have also recently obtained expert evidence which demonstrates that Mr Brady (the Company's key witness) was not truthful in his witness evidence regarding a `contemporaneous' meeting note when the Judge heavily relied on Mr Brady's evidence during the proceedings [Exhibit Ref to Russen Judgment, paragraph179 [WAT2/3]. 20. For the purpose of my present application, the Court need only be aware that the Undisclosed Documents consist of hundreds of communications, many of which are material and clearly demonstrate collusion by the Four Directors to remove me from the Company in order to further their own objectives. This was despite the fact that on23 October 2018 (3 weeks before the commence [sic] of the trial) HHJ Kramer granted a Specific Disclosure Order. The significance of the Undisclosed Documents and the extent of the Company's failure to disclose the Undisclosed Documents was such that it is hard to see that the failure was anything other than deliberate, particularly when regard is had to what was disclosed by the Company in terms of documents contemporaneous with the Undisclosed Documents. This issue is fully set out in my Particulars of Claim served in these proceedings, see for example paragraphs 31 to 34.5. 21. In light of my discovery of the Undisclosed Documents, I conducted a further review of the oral testimony of Mr Brady, Mr Ferguson and Mr Soanes by reference to the contents of the Undisclosed Documents. That exercise revealed to me that Mr Brady, Mr Soanes and Mr Ferguson had each given false evidence in the course of their testimony during the Trial of the 2018 Proceedings in a number of material aspects. 22. Accordingly, I issued this Fraud Claim in the High Court (Case Number BL-2020-002022) on13 November 2020 seeking to set aside the Judgment on the ground that it was obtained by fraud. 23. On same day, I issued a second claim in the High Court against the Company, Mr Brady, Mr Ferguson and Mr Soanes (Case Number BL-2020-002025) in which I am seeking damages from them for unlawful means conspiracy (the "Conspiracy Claim"). This action has been stayed pending the determination of this claim because I accept that pursuit of the Conspiracy Claim would be an abuse of process whilst the Judgment still stands.”
“24. On22 June 2022 , Esken proceeded to issue its application to strike out the Conspiracy Claim and to seek an order that Mr Tinkler pay the defendants’ costs of the same on the indemnity basis. 25. Mr Tinkler’s position can be shortly stated: he accepts, as he always as done, that he cannot pursue his Conspiracy Claim for so long as this Court’s Judgment stands. It does not follow from that fact, however, that it is appropriate at this juncture for the Conspiracy Claim to be struck out. Esken’s Application is premature. As set out herein, Mr Tinkler seeks to appeal this Court’s Judgment. Unless and until Mr Tinkler has exhausted his rights of appeal, he should be entitled to retain the Conspiracy Claim such that he can pursue the same in the event of his appeal is successful. There is no prejudice to the defendants to that claim in such a course: no substantive steps have been taken in relation to those proceedings and they are and will remain stayed. 26. In the circumstances, the appropriate course is for this Court to adjourn Esken’s Application pending the determination of Mr Tinkler’s appeal (in the event that this Court accedes to Mr Tinkler’s application for permission) or Mr Tinkler’s application to the Court of Appeal for permission to appeal and any appeal if permission is granted.”
“My learned friend says he is going to invite you to make an order in respect of the conspiracy claim. I do not see how he can, with all due respect. If we look at the supplemental bundle, tab 7. MR JUSTICE LEECH: Sorry, supplemental bundle. I am looking at the authorities bundle. Supplemental bundle, yes. Yes. MR WARDELL: This is a consent order made in respect of the conspiracy claim at tab 7. It is ordered by consent, that "all further proceedings in this action shall be stayed until such a time as the fraud claim has been concluded in its entirety and when all rights of appeal have been exhausted". That is the beginning and end of it. No justification has been proffered by my learned friend as to the basis on which it is appropriate for them now to say (inaudible) a consent order. I accept that in the event it is all going to be academic, but I will make it absolutely clear on the record so there is no misunderstanding, that in the event of us not getting permission to appeal or in the event of getting permission to appeal but the appeal failing, then notice of discontinuance will be served in the ordinary way. But it is not appropriate for my learned friend to come before you and say you should tear up this consent. MR JUSTICE LEECH: In practical terms, it has no effect on the undertakings given by the individuals? MR WARDELL: No. MR JUSTICE LEECH: Mr Brady and Mr Ferguson. MR WARDELL: So that is all I need to say about that.”
“The order sought by the application is not agreed. There remain significant grounds on which the pleadings in the Conspiracy Claim can be made and evidenced and I intend to progress with this claim. Secondly, the Conspiracy Claim is not predicated on, or conditional on the outcome of the Fraud Claim. It is a standalone cause of action brought in its own right, the stay of this being to avoid duplication with the Fraud claim, but it does not follow that it is bound to fail upon the fraud claim being unsuccessful as the pleaded case in the Conspiracy Claim is far wider than the fraud. As such, I see no reason why Mr Justice Leech should be required to hear the order, and further, the order should be heard by a judge independent of matters between the parties. To confirm, the application will be challenged as there remains more than reasonable grounds for bringing the Conspiracy Claim. With that it follows that there is no agreement to discharge the undertakings or consider any costs matters at this juncture. With regards to availability for a hearing, it would not be appropriate to require any response or attendance at a hearing prior to March 2024. As a litigant in person it would be wholly unreasonable and prejudicial to me to require any unnecessary expediency to these proceedings that would prevent me being able to adequately respond and prepare. Furthermore, your client(s) are not in any way prejudiced nor is there any requirement for expedition of matters given that the claim is currently stayed in any event. Any unreasonable timeframes or requests from your client that would prejudice me as a litigant in person will be brought to the attention of the court.”
“The defendants' application is based on comments made during Non-Party disclosure applications in November 2020, as well as the Claimant’s witness statements in 2021. These statements are particularly relevant in reference to the former counsel's skeleton in the consequential hearing related to the Fraud Claim in 2022, during which the Claimant was not in attendance. It's important to emphasise that the SGL claim against the Claimant in 2018 was made in his capacity as an employee and director of SGL, not as a shareholder. The comments in the Claimant's witness statements were made before I received full disclosure in the 2022 proceedings, which revealed that the new disclosure changes the narrative and involves further culpable third parties.”
“c) It's important to note that the claimant's solicitors and counsel were initially instructed on a much narrower issue within the Fraud Claim. Therefore, any comments they made were made, within that narrow context. As mentioned earlier, the scope of the conspiracy claim is significantly broader than the Fraud Claim. The conspiracy claim operates as a separate cause of action, with broader implications. With the improved understanding of the parties involved in the conspiracy and the dishonest assistance, this broader context becomes clearer. d) Therefore, my solicitors and counsel were not appraised of all the facts that will make up the pleadings and evidence for the Conspiracy, as they were instructed on a different matter. This was mainly due to the defendant’s non-disclosure. e) Clearly, if the deliberate non-disclosure had been disclosed in 2018, it would have allowed the Claimant to fully understand the narrative and amend the pleadings to include the Conspiracy and Dishonest Assistance, carried out by third parties, assisting the Defendants, and involved the largest minority shareholder, Invesco Asset Management Limited. I have set out in detail, the disclosure I received in the 2018 Proceedings relating to Invesco and the Take Over Panel. In the 2018 proceedings, only one email relating to the Take Over Panel submissions involving Invesco was disclosed as set out on [P227-228]. In the 2022 Proceedings a further 80 emails were disclosed as set out on [P229-237]. This I allege was deliberate concealment. This disclosure would have identified the competing groups of shareholders, frustrating actions undertaken, and the instructions given to directors, which the directors acted, overriding their independent mind. All these acts influenced the Board.”
“The Claimant was a director, employee and shareholder of the First Defendant. The Second Defendant was a director of the First Defendant and its Chief Executive Officer. The Third Defendant was a director of the First Defendant and its Chairman. The Fourth Defendant was a director of Stobart Capital Limited. The Claimant is entitled to and claims damages as against the Defendants in the tort of unlawful means conspiracy in circumstances where: i. in or around early 2018, the Defendants or some of them combined and conspired together with the intention of injuring the Claimant, their objective being to secure his dismissal as an employee and removal from office as a director of the First Defendant; ii. the unlawful means by which the conspiracy was carried out included (a) the breach by the First Defendant of the Claimant's contract of employment; (b) the breach by the Second and Third Defendants of their fiduciary duties to the First Defendant; (c) the giving of false evidence by the Second and Fourth Defendants at the trial of proceedings brought by the First Defendant against the Claimant in 2018; and (d) the First Defendant's fraud upon the Court in the proceedings brought against the Claimant in 2018; iii. the Defendants' conspiracy succeeded in its objective with the result that the Claimant was dismissed as an employee of the First Defendant and removed from office as a director without legitimate justification or lawful basis; and iv. the Claimant suffered loss and damage by reason of the conspiracy in that (a) his dismissal as an employee and removal from office deprived him of the share award that would otherwise have enured to him under the First Defendants Long Term Incentive Plan; and (b) the conspiracy and, in particular, the First Defendants fraud upon the Court pursuant to the same caused him to incur costs in the 2018 proceedings that he would not otherwise have incurred.”
“(i) in or around early 2018, the Defendants or some of them combined and conspired together with the intention of injuring the Claimant, their objective being to secure his dismissal as an employee and removal from office as a director of the First Defendant;execute this by using the board's powers, breaching their duties to control and influence the AGM vote, ultimately for self-interest and financial gain, by securing the Third Defendant's seat on the board, a decision designated to the general body of shareholders. (ii) the unlawful means by which the conspiracy was carried out included (a) the breach by the First Defendant of the Claimant’s contract (the Claimant has right’s [sic] through the [Article]s of Incorporation) of employment; (b) the breach by the Second and Third Defendants of their fiduciary duties to the First Defendant; (c) the giving of false evidence by the Second and Fourth Defendants at the trial of proceedings brought by the First Defendant against the Claimant in 2018; and (d) the First Defendant’s fraud upon the Court in the proceedings brought against the Claimant in 2018; (and breach of fiduciary and regulatory duties owed by the additional defendants) (iii) the Defendants’ conspiracy succeeded in its objective with the result that the Claimant was dismissed as an employee of the First Defendant and removed from office as a director without legitimate justification or lawful basis (by gerrymandering the vote at the AGM to keep the third Defendant the Chairman’s seat on the Board of SGL after the AGM); and (iv) the Claimant suffered loss and damage by reason of the conspiracy in that (a) his dismissal as an employee and removal from office deprived him of the share award that would otherwise have enured to him under the First Defendant’s Long Term Incentive Plan; and (b) the conspiracy and, in particular, the First Defendant’s fraud upon the Courtas a shareholder of SGL, the Second and Third Defendants breached their fiduciary duties to the First Defendant and by acting in self-interest and for personal gain, taking frustrating actions, that were Ultra Vires for an improper purpose while using their powers to influence the outcome of a general meeting. This represents not just an abuse of power for a collateral purpose, but also violates the constitutional distribution of powers within the company. It involves the misuse of the board’s powers to control or influence a decision designated to the general body of shareholders as outlined in the company’s constitution. pursuant to the same caused him to incur costs in the 2018 proceedings that he would not otherwise have incurred.”
“36. I firmly believe the evidence presented above, clearly demonstrates that the Defendants have undertaken a deliberate strategy, established 'Project Shelley' and initiated a “war room” to “fight like tigers” approach, to aggressively secure the re-election of the Third Defendant at the upcoming AGM. It appears that they have overlooked their duties concerning director powers and independence and have undertaken actions that impede my rights as a shareholder of SGL. My intention was to convey to the entire board my decision to vote against the re-election of the Third Defendant at the upcoming AGM, to ensure that the Board was aware of my concerns. 37. The above demonstrates the commencement of the Conspiracy, and is only a short extract over several weeks, which accelerates over the following months. This is set out in the consolidated book of disclosed and undisclosed material, which I now exhibit to this statement. [P,8-205]. The Fourth defendants’ evidence before the Court, was that he had no involvement with SGL. It is submitted that when one reads the written evidence of the Fourth defendant, prepared by Rosenblatt’s [sic], and the statement of truth signed by the Fourth defendant, alongside the transcript of the oral evidence in the 2018 proceedings, this evidence undermines the evidence provided, and demonstrates an Unlawful Means Conspiracy along with Dishonest Assistance.”
“The Claimant has undertaken extensive work, in now understanding the wholesale non-disclosure, which the defendants now seek to blame their solicitors Rosenblatt’s [sic]. The Court is reminded of the submissions made by counsel Mr Wardell KC at the opening, on7 February 2022 , addressing the issues in respect of disclosure. It can be seen reference was made to the disclosure statement signed by Mr Brady. There was also a second and third disclosure statement produced and signed by Simon Walton [Partner of Rosenblatt] on 26 and29 October 2018 . The second and third disclosure statement was provided following the Specific Disclosure Order of HHJ Kramer dated26 October 2018 . It is also now revealed that all the disclosure statements were deficient, and misleading, when considering the consolidated book of disclosed and undisclosed material. The blue entries are the messages disclosed by D4 in the employment tribunal proceedings. The black entries are what was disclosed by Rosenblatt. The red entries, which I will refer to the “sea of red,” are the undisclosed messages/ documents in the 2018 proceedings. The Green entries are what was disclosed in 2018 but not in the Court bundle. The column headed responsive confirms whether the document/message responded to an “Agreed Search Term”.”
“In deciding whether to give permission for an admission to be withdrawn, the court shall consider all the circumstances of the case, including— (a) the grounds for seeking to withdraw the admission; (b) whether there is new evidence that was not available when the admission was made; (c) the conduct of the parties; (d) any prejudice to any person if the admission is withdrawn or not permitted to be withdrawn; (e) what stage the proceedings have reached; in particular, whether a date or period has been fixed for the trial; (f) the prospects of success of the claim or of the part of it to which the admission relates; and (g) the interests of the administration of justice.”
“Cases will vary infinitely and the weight to be given to the relevant factors will inevitably vary from case to case. Sometimes the lack of new evidence and the lack of explanation may be the important considerations; in others prejudice to one side or the other will provide a clear answer and in all the interests of justice will sway the balance. It would be wrong for this court to circumscribe the manner of the exercise of this discretion or to give any more guidance than is trite, namely, carry out the task set by the Practice Direction, weigh each of the identified factors as well as all the other circumstances of the case and strike a balance with due regard to the overriding objective.”
“Since the grounds relied on by the Defendant have no substance the application must fail. In fact it goes further than that. This is a case in which it is said that the admission was made in error. No explanation at all is offered as to how this error was made. The firm which made the error is hugely experienced in the type of claim involved here. An initial denial of liability was followed by a lengthy review of the decision by the firm with at least one senior member of staff being involved. The firm consulted the Defendant in the course of that review. Whilst the review was in train the repair of November 2013 was carried out. All of the external evidence suggests a careful consideration of the available material and a reasoned decision based on that material. I have been provided with no evidence whatsoever to undermine that proposition. In those circumstances the total lack of any explanation coupled with the lack of any new evidence – or at least no new evidence which might support the pleaded Defence – is of very considerable significance. They are the “important considerations” in this instance (to use the language of Woodland). The final consideration within the list set out in the Practice Direction is the “interests of the administration of justice.”
“(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.”
“Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi in a manner proportionate to the size of Aldi's claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have inquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation. However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future.”
“48. I am in no doubt that the rule in Henderson v Henderson has no application to the facts of the present case. That is because there was no relevant determination by DJ Stewart which could legitimately prevent the appellants' subsequent pursuit of the malicious prosecution claim. 49. At the time of the hearing before DDJ Payne, there was a trespass claim which had not got beyond the pleading stage, and a later malicious prosecution claim, arising out of the same incident (but with many different features), which had also not got beyond the pleading stage. There had been no determination by the court of any substantive issue. The appellants could not be accused of trying to go behind some earlier determination of the court, because there had not been one. The only determination that DJ Stewart made was allowing the appellants permission to reamend the trespass claim. On the face of it, that had nothing to do with the existence or otherwise of the separate malicious prosecution claim, which had not even been commenced. 50. On that basis, therefore, it is impossible to see how the rule in Henderson v Henderson could have any general applicability to this case. It might be different if the trespass claim had been fought through to a trial and been determined by the court by August 2020. In those circumstances, the commencement of the malicious prosecution claim in October 2020 may well have fallen foul of the rule, because it could and should have been raised before the trespass trial. But that was all a long way off in August 2020, when the trespass claim had not got beyond the pleading stage, and the only determination was the permission to make some reamendments.”
“56. A party seeking to obtain a finding that there has been an abuse of process faces a high hurdle. Abuse of process has been defined as the use of the court process "for a purpose or in a way significantly different from its ordinary and proper use": Attorney General v Barker[2000] 1 FLR 759 , DC, Lord Bingham of Cornhill. It needs to be shown that the conduct of the party in question is so objectionable that they should forfeit their right to take part in a trial, such as where that party is determined to pursue proceedings with the object of preventing a fair trial (through the use of forgeries and perjured evidence): Arrow Nominees Inc v Blackledge[2000] BCLC 167 , CA. 57. In the context of more than one set of proceedings, Dexter Ltd v Vlieland-Boddy[2003] EWCA Civ 14 at [49] is authority for the proposition that a later action will usually only amount to abuse of process if it involves unjust harassment or oppression. Aldi Stores Ltd v WSP Group PLC & Ors[2000] EWCA Civ 1260 at [21] and [39] gives guidance to the effect that a party who learns of a second intended action and considers that it may be oppressive (and therefore an abuse) should say so promptly rather than waiting and then applying to strike out under this ground. 58. Striking out a claim is a draconian remedy. Even in a case where abuse may be made out, it does not necessarily follow that the claim should be struck out: Biguzzi v Rank Leisure PLC[1999] 1 WLR 1926 and Walsham Chalet Park Ltd v Tallington Lakes Ltd[2014] EWCA Civ 1607 . The remedy of striking out must be proportionate in all the circumstances. There are obviously numerous alternative remedies, so the striking out of a valid claim should always be the last option.”
“It has become evident”; and in paragraph 8(f) with the words: “It is now revealed”
“6. By 4pm on26 October 2018 , the Claimant shall electronically image, search, disclose, and give inspection of messages on the mobile devices of Ms Brace, Mr Ferguson, Mr Coombs and Mr Wood. 7. By 4pm on24 October 2018 Mr Field shall serve a witness statement: a. Providing an explanation of the process by which disclosure has been given of documents (including SMS and WhatsApp messages) on Mr Brady’s telephone and handheld devices, including why documents exhibited to Mr Field’s first witness statement (including messages with Mr Day and with Mr Soanes) had not previously been disclosed (insofar as that question is not dealt with in his first witness statement); b. Providing an explanation as to why Mr Brady’s forwarding email to Mr Soanes of Mr Brown’s email dated5 February 2018 (including the underlying chain) was not disclosed and as to how it was represented that part of that chain had in fact been disclosed; and c. Stating whether there are any further disclosable documents concerning actual or proposed communications with the trustees of the EBT shares concerning the giving of an indemnity or other comfort to influence their vote at the AGM on6 July 2018 (and if there are, providing disclosure thereof and explaining why they were not previously disclosed). 8. By 4pm on24 October 2018 the Claimant shall disclose and give inspection of all minutes and/or ‘agreed actions’ of the Board of the Claimant and the ‘Core Time’ meetings from September 2017 to July 2018 inclusive.”
“7. It is a matter of regret and concern that, in a case that is in large part concerned with the manifest inadequacy of a disclosure exercise, this case too has been bedevilled by serious disclosure failings. 8. Disclosure has had to be extracted from Esken through protracted correspondence and multiple applications for disclosure. The result has been a drip-feeding of supplemental disclosure list after supplemental disclosure list by Esken, the most recent of which - the 7th - arrived as recently as31 January 2022 but should have been provided on14 September 2021 . 9. Even at this late stage, serious concerns remain as to Esken’s disclosure in circumstances where: (1) There appears to have been widespread deletion of relevant documents by key individuals, none of whom can give a credible explanation as to why (and, in many cases, when) they did so to the extent that they are willing to admit it at all. We now know that Mr Brady deleted WhatsApp messages from Mr Soanes on multiple occasions; that he deleted large numbers of relevant WhatsApp messages with Mr Dilworth; and that he deleted Telegram messages with Mr Soanes, despite denying ever having done so as recently as30 January 2022 . We also know that Mr Dilworth deleted all his text and WhatsApp messages with Mr Brady over a wide search period. Finally, we also know because it is the only plausible explanation - even if Mr Ferguson continues to deny it - that Mr Ferguson deleted all of his Wilton Park emails relating to Esken pre-dating3 May 2018 . The fact of these deletions has only ever been admitted by Esken when it has been confronted with evidence of the same. There is little that can give Mr Tinkler or this Court confidence that any thorough attempt has been made by Esken to understand what documents that were in its control have since been deleted. It no doubt does not want to know. (2) We know that from around January 2018 onwards, key individuals at Esken used their personal email addresses for Esken matters relating to Mr Tinkler. The result is that their emails are much less amenable to capture than they would be had they been sent to or from Esken email addresses as they plainly should have been. The problems caused by this decision were compounded by the fact that these individuals were all permitted to harvest Esken-related emails on their personal email accounts themselves, leaving ample scope for relevant documents to be missed (at best) and deleted (at worst). (3) The steady drip-feeding of disclosure long after it should have been first provided gives one no reason to be confident that the exercise has now finally been completed - and completed properly. (4) Privilege has been asserted without any sensible basis for doing so. The Court will recall the extensive argument on Mr Tinkler’s disclosure application at the PTR in December 2021 about the Operation Overlord document. As the Court will see when it considers the document, it is plainly not privileged. Worse still, Mr Tinkler now knows that Esken’s lawyers met with Mr Soanes to ensure that he did not disclose the Operation Overlord document in response to the third-party disclosure order made against him. There is a real concern as to what other relevant and disclosable documents privilege may wrongly have been asserted over, particularly given the early involvement of lawyers in the dispute with Mr Tinkler in 2018. (5) Large numbers of relevant documents that respond to search terms have inexplicably been missed. That was a problem in the 2018 Proceedings as Mr Tinkler’s Particulars of Claim shows and it remains a problem in these proceedings. The most recent example of this phenomenon came with the disclosure on25 January 2022 when Esken disclosed some 29 such messages passing between Mr Brady and Mr Dilworth. Their unexplained disclosure was of course particularly troubling because Mr Tinkler’s solicitors have been complaining about the apparent absence of messages passing between those two men since10 November 2021 . Mr Tinkler simply has no confidence that, even where they do survive because they have not been deleted, relevant documents have been identified as such and disclosed to him. (6) Multiple important queries raised by Mr Tinkler’s solicitors of Esken’s disclosure, most recently in a lengthy letter of19 January 2022 , remain unanswered. Esken’s apparent inability or unwillingness to answer the same is troubling.”
“MR WARDELL: That’s all I say about that case. I was then going to -- final bit about the law. I was going to say something about disclosure. And this is all trite material but, of course, we say the disclosure and the duties that surround it have a very important bearing on the issues my Lord has to decide and that’s because a large part of Mr Tinkler’s case is that Esken first of all deliberately failed to disclose documents it was under a duty to disclose, deleted documents it anticipated it would have to disclose, and then, thirdly, failed to mention the fact it had in fact deleted those documents on the disclosure statement. We have set out the relevant principles relating to disclosure at paragraphs 201 to 206 of our skeleton argument. They are trite and the court will be familiar with them so I don’t propose to address them orally. What I do wish to emphasise, however, is this: it’s the duty of the lay client, when it comes to disclosure. As the court will see, a rather consistent refrain in the defence and of Esken’s witnesses is that they left the matter to their solicitors in 2018, Rosenblatt, who rather troublingly have seen fit to also act in this action. The proposition they left it to their solicitors just won’t wash. It doesn’t work on a practical level because it’s the lay client who knows what documents it does and doesn’t have. A solicitor can try and understand the universe of documents for the purposes of collecting and reviewing them but, in the final analysis, unless the lay client gives accurate and honest instructions, the process doesn’t work. And it doesn’t work on a principled level either because in this case it was the lay client, Mr Brady, to be precise, who signed the disclosure statement for and on behalf of Esken. He was the person to whom the board delegated authority to run the litigation. We will find the disclosure statement at {C/12A/1}. And you will see on page 1 under the disclosure statement.” “But no one at Rosenblatt has seen fit to make a witness statement explaining how the disclosure process worked, what in fact happened, on what was, in any view, a deeply unsatisfactory disclosure process. If you are going to blame your solicitors, bluntly, you have to put your solicitors up to explain what happened, what went wrong and to make it clear that what went wrong wasn’t any failure of instruction on behalf of the lay client. My learned friend, in his skeleton argument, seeks to draw some comfort from the evidence put in by Mr Field in October 2018. He can’t do that. He hasn’t served a hearsay statement. He hasn’t sought to adduce any evidence from the solicitors. So you will be left to speculate as to what in fact happened. And there are so many permutations. At one very bad extreme, the solicitor could be involved in wrongdoing. At the other extreme, the solicitor could be completely innocent and entirely misled by his client.”
“But this was before I had realised what had occurred in respect of what I allege [is] the deliberate concealment.”
“Mr Tinkler names RBG Holdings plc and RBG Legal Services Limited as proposed defendants. At the material time in 2018, RBL Law Limited (formerly known as Rosenblatt Limited) was instructed on behalf of Esken. RBG Legal Services Limited was not incorporated until23 March 2021 . RBG Holdings plc is the parent company of RBL Law Limited and RBG Legal Services Limited. RBG Holdings plc has no involvement with Esken save for being the owner of the law firm instructed by Esken.”
“It was unfortunate that the full extent of the Wilton Park disclosure had not been fully unravelled by the time the hearing commenced in 2022. However, what I allege in the Conspiracy Claim is that Mr Ferguson along with the Dishonest Assistance of Mr Field both deleted and concealed the Wilton Park Disclosure. I am now in a position to show this court the exact position in respect of the Wilton Park Disclosure. You will recall and has [sic] Mr Field points out now there was no allegation against Mr Field in the 2022 Proceedings, in respect of this matter, but there certainly are allegations now.”
“I intend to pursue this Claim as a shareholder. In this Claim, the defendants with the assistance of the majority shareholder, Invesco Asset Management Limited, made submissions to the Take Over Panel, misleading the Take Over Panel as to who was making the submissions, which resulted in me, and my fellow shareholders being restricted from purchasing shares. I have already shown you the sea of red with Bouverat and Brazier which was deliberately concealed. This information was known to both Ian Rosenblatt and Anthony Field who at the time were copied into the email exchanges into the submissions being made to the Take Over Panel. However, these important emails were never disclosed in the 2018 Proceedings. Even though many were responsive to the agreed search terms, and certainly relevant to the issues.”
“304. On 8 June, Stifel wrote a detailed email to the Takeover Panel on behalf of the Company seeking guidance as to whether or not, in circumstances where Mr Tinkler, Mr Jenkinson and WIM had submitted their 4 June requisition for the appointment of Mr Day and held in excess of 33% of the voting capital, they had made a control-seeking proposal for the purposes of the Takeover Code which, taken with their historical relationship, might evidence the existence of a concert party. The email referred to Mr Tinkler's share purchases in February and to the Company's belief that "a concert party exists between Messrs Tinkler and Jenkinson and WIM and that it existed even before they started discussing a proposal to change the Board." On the basis that the Panel agreed, it was asked to investigate a number of matters, including when it was that Mr Jenkinson and WIM first agreed to support Mr Tinkler.” “349. On28 June 2018 , or thereabouts, the Takeover Panel communicated its view upon the alleged concert party between Mr Tinkler, Mr Jenkinson and WIM. According to Stifel (who were given an opportunity to provide their comments before the Panel pronounced) the Panel was "very clear" that there had been no concert party between them from February but by reference to the "board control-seeking resolution" - Mr Coombs and Mr Wood had indicated they would resign if shareholders did not re-elect Mr Ferguson - there was now a presumed concert party between those persons objecting to Mr Ferguson's re-appointment. Stifel told the Company that this would mean the three would be precluded from buying any further shares. In fact, K&L Gates (acting by their John Elgar) had already asked each of Mr Tinkler, Mr Jenkinson and WIM to confirm that they had not acquired any shares in the Company" since coming to their understanding regarding making changes to the Company's board (i.e. no later than the date of their first letter)" and the first two had confirmed they had not.”
“769. Mr Tinkler argues that both parts were aspects of an orchestrated plan, described as "Project Shelley", by which the Four Directors aimed to secure Mr Ferguson's appointment over Mr Tinkler's. That name was used in various emails passing between them and the Company's advisers from 24 May onwards. 770. On10 June 2018 Ms Brace sent an email in the form of an "action tracker" document which included as "Shelley actions" such steps as eliciting the voting intentions of Jupiter in the event of shares being transferred to the EBT. The announcement of the Ryanair deal was also on the action list. The creation of the action list coincided with the Company's recent instruction of Rosenblatt, on8 June 2018 , to devise a legal strategy in relation to Mr Tinkler and to deliver a winning vote at the AGM. The other advisers involved were Travers Smith and Carey Olsen, Redleaf, DF King (a "proxy solicitant"), Stifel and the Company's other new broker, Canaccord. 771. Mr Tinkler's counsel argued that Project Shelley was a codename for what amounted to a "war on Mr Tinkler". It involved going on the offensive for the purpose of "seeking to maintain Mr Ferguson's position and control". Mr Ferguson, on the other hand, said that " Project Shelley was a project which came into being to try to defend the good governance of the Company." Mr Brady said that there was no "Project Shelley" and the name was used to describe a particular PR workstream. He said it was a campaign to make sure that they had shareholder support for the support of the current management and board.”
“903. The first question within this issue is whether the Four Directors were acting for an improper purpose which might impugn the Committee's decision to dismiss Mr Tinkler (the Committee comprising all of them bar Mr Ferguson). As appears from my findings under Issue 4, the only element of improper purpose on their part which I have found to be established relates to the decision in relation to the transfer of the 5.3m shares to the EBT, made on 19 and20 June 2018 and therefore after his dismissal. My findings under Issue 2 show that, by14 June 2018 , Mr Tinkler had given them cause to consider his dismissal. I have already mentioned Mr Brady's belief that Mr Tinkler's actions in early June were "the tipping point" so far as the destabilising effect of his actions was concerned. Mr Brady's WhatsApp exchange with Mr Dilworth on 9 June ("Starting an employee revolution is what he is trying to do") records his view at the time. Mr Coombs said that the events of early June were "the cumulative effect of a number of things that he had done, and the last straw, though it was somewhat bigger than a straw, to break the camel's back was what happened that weekend." 904. There is no basis for concluding, in relation to Mr Tinkler's dismissal, that any of the Four Directors acted for an improper purpose and the evidence overwhelmingly points the other way. I therefore reject Mr Tinkler's argument that they acted for the improper purpose of retaining their control of the Company and making it more likely that Mr Ferguson would be elected. Not only I am unpersuaded that Mr Tinkler's status as an employee would have been thought by most shareholders to be material to the prospects of any of the Four Directors being re-elected at the AGM (a point which Mr Ferguson made in his evidence) but, in any event, it is Mr Tinkler who, by his actions, had precipitated the consideration of his dismissal.” “911. It was also alleged by Mr Tinkler that the decision to dismiss him was in part a pretext for denying him his 2015 LTIP entitlement, which would have vested on22 June 2018 , so that he was unable to vote those shares at the AGM. However, I am satisfied that this did not feature in the Committee's thought process when deciding to dismiss him. There is no evidence that it did. Quite apart from anything else, he had indicated at the Board meeting on7 June 2018 that he would not be exercising his award at that time because of the two year holding period. Even if this had been a consideration in the minds of the Committee members it would still not have supported the conclusion that they had been substantially motivated by it. Such an argument would only begin to gain traction if the grounds on which they purported to act were established to be spurious. As I explain next, that is not the position, so Mr Tinkler's loss of his 2015 LTIP entitlement can be safely pigeonholed as an "effect" rather than a "cause".”
“The Claimant fully acknowledges Judge Russen's findings in the 2019 Judgment, which still apply to my roles as a director and employee”
“Nevertheless, I cannot leave Mr Soanes’ evidence without pointing out that it would have been far better if Mr Soanes had been open and had disclosed both the Loan Agreement and the Consultancy Agreement in his principal witness statement for trial. It would also have been better if he had disclosed that he had remained in contact with Mr Brady and Mr Coombs after his suspension by Mr Tinkler on22 February 2018 . As Mr Wardell pointed out to him, this gave the impression that he had not had any involvement or contact with SGL since that date and led the Judge to conclude that Mr Soanes was an independent witness “untainted by any agenda or motive”
“Stepping off board for health reasons would be a [sic] easy solution.”