Andrew Tinkler & Anor v Stifel Nicolaus Europe Ltd & Ors [2025] EWHC 1596 (Ch)

[2025] EWHC 1596 (Ch)Case No BL-2024-000750
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate Wednesday, 11 June 2025
Before
Mr Justice Leech
Between
Andrew Tinkler & Anor.Claimants(19) Stifel Nicolaus Europe LtdDefendants
Mr J King appeared for Claimants.Mr A Temple (instructed by Simmons & Simmons LLP) for Tenth and Twelfth Defendants.Mr C Catsambis (instructed by Baker & McKenzie LLP) for Sixteenth Defendant.Mr A Gledhill & Mr T Lau (instructed by Ashurst LLP) for Nineteenth Defendant.Hearing Hearing date: 10 June 2025
APPROVED JUDGMENT
[1]By Application Notice dated 16 May 2025,the Claimant, Mr Andrew Tinkler, applies to stay thisaction pending the outcome of an investigation by theTakeover Panel to which I will refer as the “Panel".In the interests of time, I will not set out thebackground to the action or a detailed proceduralhistory, be it what is necessary to make sense of thisjudgment, but both are familiar to me from the judgmentswhich I handed down on 7 June 2022 and 17 June 2024.Although a number of parties were named in the Claim Form, it was only served on four of them to whom I will refer as “Active Defendants”. They were the10th Defendant, Invesco Asset Management Ltd, the Twelfth Defendant, Mr Frederic Bouverat, the Sixteenth Defendant,Orbitus Trustees Guernsey Ltd, and the Nineteenth Defendant, Stifel Nicolaus Europe Ltd.A brief chronology for the purposes of this judgmentare as follows.(1) On 21 July 2023 Mr Tinkler wrote to the Panelapparently in response to a review which it was carryingout. In his letter, he referred to submissions which hehad made on the same day in relation to alleged breachesof Rule 9 of the Takeover Code (the “Code").(2) On 6 and 7 February 2024 Mr Tinkler sent Letters ofClaim to the Active Defendants alleging anunlawful means conspiracy. In the last paragraph of hisletter to the Nineteenth Defendant he stated that he wasconfident that there was no defence to the allegations (although he was prepared to engage in ADR).(3) On 23 May 2024 Mr Tinkler issued the Claim Form andon 23 September 2024 it was served on the Active Defendants.(4) On 20 November 2024 Ashurst served an Application Notice applying to strike out the claim form on behalfof the Nineteenth Defendant.On 3 December 2024 Baker & McKenzie followed suiton behalf of the Sixteenth Defendant and on 4 December 2024Simmons & Simmons served an Application Notice to strikeout the Claim Form on behalf of the Tenth and Twelfthdefendants.(5) On 27 February 2025 Mr Tinkler wrote to the Panelagain. In that letter, he referred to submissions whichhe had sent to the Panel on 18 September 2023.On 22 April 2025 he wrote again to the Panel, againthis time to highlight "material omissions" in a letter dated 17 April 2025because it had failed to address critical evidence fromsubmissions made to it on 9 August 2018 and 20 August2018, some seven years earlier.(6) On 16 May 2025 Mr Tinkler issued the ApplicationNotice for a stay. The three strike-out applicationshave been listed before me for some time in a windowthis week and after Mr Tinkler writing to the Chancellor, I agreedto list the stay application immediately before thehearing of the strike-out applications.(7) I heard the stay application yesterday on theafternoon of 10 June 2025, and before the parties hadmade any submissions in relation to the merits of thestrike-out applications.[2]I turn next to the evidence.Mr Tinkler made two witness statements in support ofthe stay application dated 16 May 2025 and 5 June 2025to which I will refer as "Tinkler 2" and "Tinkler 3".His evidence was that the court's determination ofthe strike-out applications was likely to be materiallyinfluenced by the outcome of the Panel's investigation.It was also his evidence that there was a verysignificant overlap between the issues which arise inthis action and the Panel's investigation.Mr Jonathan D King who appeared on behalf ofMr Tinkler placed particular reliance on Tinkler 2,paragraph 15:
"By way of summary only, I note as follows: a. My contention that Invesco (D10), Stifel (D19),and others concealed a concert party in submissions tothe Takeover Panel (see paragraph 40.4 of theParticulars of Claim) and that D10 (Invesco) instructedStifel (D19) to submit misleading concert partydisclosures on Stifel’s letterhead to hide D10’sinvolvement (albeit that ultimately was not sent onheaded paper, but instead with a cover email which gavethe impression that it was sent on behalf of D19)overlap with my contention that the Applicants engagedin concert party activity before the AGM and after theAGM contrary Rule 9.1 of the Takeover Code. b. My allegations within the Current Claim as toimproper transfers of treasury shares to the EBT tomanipulate AGM voting (see paragraph 75.8 of theParticulars of Claim), overlap with my complaints as to'frustrating action' under Rule 21.1. c. My allegations that the erroneous and misleading29 May 2018 RNS announcement was used to influenceshareholder voting (see paragraph 39 of the Particularsof Claim) overlap with my complaint that the TakeoverPanel was provided with misleading submissionsin June 2018. d. My complaint to the Takeover Panel includes acomplaint about the manipulation of the vote at and inconnection with the AGM."
[3]Mr Tinkler then set out seven paragraphs dealing in detail with his complaints in relation to the AGM,which I will not repeat in this judgment.Mr Tinkler explained that he had made theapplication because of the recent correspondence which served to confirm that the Panelinvestigation was actively progressing but that itwould not be concluded before the hearing of thestrike-out applications. He also gave evidence that hewas likely to suffer substantial and, as he put it,irremediable prejudice if the strike-out applicationswere heard and granted before the conclusion of theinvestigation because he would be deprived of a judicialremedy and if the findings and outcome revealed that theactive defendants were liable on the basis of thepresent claim.In Tinkler 3, Mr Tinkler was unable to state whenthe investigation would be concluded, but stated that itwas an active and ongoing one and that the Panel hadindicated that it would be completed in due course.[4]In relation to the timing of the stay applicationitself, he stated that he had been interviewed by thePanel on 12 November 2024. He also referred to theletters which he had received from the Panel on17 April 2025 and 24 April 2025, which are not inevidence (or at least to which I was not taken) and hethen stated as follows in paragraphs 24 and 28:
"24. This exchange demonstrated for the first timethat the Panel was taking forward a full investigationinto the matters raised. It also confirmed that thePanel had lacked sufficient evidence in November 2024 toescalate the matter to its Hearing Committee at thatearlier stage.” "28. In turn, it is my position the application fora stay was made promptly once it became clear that thePanel had commenced a substantive investigation inresponse to my evidence, and once it was apparent thatthe investigation was both ongoing and unlikely to beconcluded prior to the hearing of the Applications inJune 2025. Conversely, it is my position that it wouldhave been both unrealistic and indeed inappropriate forme to apply sooner, given both the uncertainty as to how(if at all) the Takeover Panel would further progressthe matter, and whether any such investigation as mightbe taken would be concluded prior to the June 2025hearing in any event."
[5]I turn next to the law. Mr Andreas Gledhill KC, whoappeared for the Nineteenth Defendant, cited the decision ofthe Court of Appeal in Athena Capital Fund v Secretariatof the State for Holy See [2022] EWCA Civ 1051, [2022]1WLR 4570 and Mr Tinkler did not dispute that itaccurately stated the law.In Athena the Court of Appeal settled a dispute inthe authorities about whether it was necessary for anapplicant to demonstrate exceptional circumstancesbefore the court will grant a stay in relation to parallelproceedings. Males LJ stated as follows at [59]:
"There is, as it seems to me, no reason to doubtthat it is only in rare and compelling cases that itwill be in the interests of justice to grant a stay oncase management grounds in order to await the outcome ofproceedings abroad. After all, the usual function of acourt is to decide cases and not to decline to do so,and access to justice is a fundamental principle underboth the common law and article 6 ECHR. The court willtherefore need a powerful reason to depart from itsusual course and such cases will by their nature beexceptional. In my judgment all of the guidance in thecases which I have cited is valuable and instrctive,but the single test remains whether in the particularcircumstances it is in the interests of justice for acase management stay to be granted. There is not aseparate test in 'parallel proceedings' cases. Rather,considerations such as the existence of an exclusiveEnglish jurisdiction clause and the danger ofcircumventing a statutory scheme for the allocation ofjurisdiction (such as the Judgments Regulation) will beweighty and often decisive factors pointing to where theinterests of justice lie."
[6]Mr Gledhill also pointed out that the present caseis unusual because it is the claimant applying fora stay rather than the active defendants. He had reliedon the decision of Gloster J (as she then was) inKlöckner Holdings GmbH v Klöckner Beteiligungs GmbH[2005] EWHC 1453 (Comm) where the judge stated at [21] that the relevant factorswhich guide the court in the exercise of its discretionare as follows (and, for convenience, I omit thereferences):
"(i) The court has a wide discretion to stayproceedings, but in circumstances where the claimantitself has voluntarily brought the two sets ofproceedings, a stay should only be granted in very rarecircumstances ... "(ii) Even where there are such reasons for a stay,a stay should only be granted if the benefit of doing soclearly outweigh any disadvantage to the other party ... "(iii) A particularly compelling case would berequired for a stay to be granted to the claimant yearsafter he has brought the claim ... "(iv) A stay will not, at least in general, beappropriate if the other proceedings will not even bindthe parties to the action stayed, let alone finallyresolve all the issues in the case to be stayed. "(v) A stay will not, at least in general, beappropriate if the parties to the other proceedings arenot the same; "(vi) A Defendant against whom a serious allegation(such as deceit) is made is entitled to an expeditioushearing, and should not be left for years waiting forthe outcome of another case over which he (and theCourt) has no control. An action alleging fraud shouldcome to trial quickly; thus unwarranted delay may leadto an action being dismissed for want of prosecutioneven before the limitation period has expired ..."
[7]Mr Gledhill did not place any particular reliance onprinciple 4 and accepted that it was probably no longergood law, but he placed reliance on the other principlesand, in particular, principle 6.In my judgment, the interests of justice do notfavour a stay, and this is not a rare and compellingcase which would justify a stay of proceedings until thePanel has completed its investigation and reacheda decision.In the exercise of the court's discretion,therefore, I refuse to grant a stay and I do so for thefollowing reasons.(1) The application was made very late. I acceptMr King's submission that Mr Tinkler had to issue andserve the Claim Form to avoid the claim being barred bylimitation. I also accept his submission that it wasunlikely that the Active Defendants would have agreed toenter into standstill agreements. But Mr Tinkler couldhave sought the consent of the Defendants to a stayimmediately on service, and if they failed to agree,applied to the court then.(2) For the purposes of this application at least,I am prepared to accept Mr Tinkler's evidence that he hasonly recently become sure that the Panel was undertakingan active investigation and I am not prepared to acceptthe Active Defendants' submission that the stayapplication was a cynical ploy to derail the strike-outapplications. But the consequence of the lateness ofthe application is that I am faced with a binary choicewhether to grant the stay application or to hear thestrike-out applications.(3) Faced with that choice, I might have been preparedto grant a stay for a short period of time, say three oreven six months, if a decision of the Panel wasimminent. But I am not prepared to grant an open-endedstay.There was some debate about the procedure which thePanel might adopt, but I cannot be satisfied that itwill be completed within a year or even two years.(4) I am not satisfied that there is a verysignificant overlap between the issues which arise inthis action and those which arise in the Panel'sinvestigation. Mr Adam Temple, who appeared for the Tenth and Twelfth Defendants, pointed out that Mr Tinkler'scomplaint to the Panel is that the four directors ofSGL (as it was then called) concealed a concert partyfrom the Panel and failed to comply with Rule 9: see Tinkler 2, paragraph 15 (above).But the allegation against the Active Defendants inthis action is that they conspired to take control ofSGL by making misleading submissions to the Panel, namely, thatMr Tinkler himself was acting in breach of Rule 9 of theCode. Indeed, the only reference in the Particulars of Claim to the directors acting in breach of Rule 9 isa brief reference in paragraph 40.4.(5) It is common ground that the findings of thePanel are not binding on this court under the rule inHollington v Hewthorn. I accept that further evidencemay come out in the course of the Panel investigation orupon which the Panel relies, which is directly relevantto the issues in the present action. But if thosedocuments are in the possession or control of the Active Defendants and this action continues, they will be underan obligation to disclose those documents in this actionin any event.Moreover, in hearing the strike-out applications,the court is entitled to have regard to the documentswhich may come out on disclosure, particularly ina conspiracy claim.(6) Mr Tinkler is not firing blind. Thedirectors have already given disclosure in two heavilycontested actions and I have had the advantage ofconsidering that evidence and data, both on a contestedspecific disclosure application and at trial.(7) I am not satisfied that Mr Tinkler will bedeprived of a remedy if I refuse to grant a stay.Mr King took me to a Panel decision which shows that thePanel was able to award compensation assessed byreference to common law principles for a breach ofRule 9. If Mr Tinkler's complaint to the Panel issuccessful, it has power, therefore, to award himcompensation. Moreover, Rule 9 requires a concert party holdingmore than 30% of the shares to make an offer to purchasethe remaining shares in the company. But, as Mr Templesubmitted, this is not Mr Tinkler's complaint in thisaction. His complaint is that the four directorsconspired to take control of SGL by ignoring the wishesof the other shareholders, removing him as a directorand then manipulating the outcome of the AGM.The very last thing in the world which he would havewanted to do was to sell his shares to them.(8) I am notsatisfied, therefore, that Mr Tinkler will suffersubstantial prejudice if I refuse a stay, far less thatit will be irremediable. But even if I had beensatisfied that Mr Tinkler would suffer materialprejudice, I would still haverefused a stay and for the reason submitted byMr Gledhill. His primary submission was that it wasonly appropriate to stay the action if I were satisfiedthat it was properly brought in the first place.I accept that submission.If, as the Active Defendants submit, the claim isabusive and represents a collateral attack on a numberof prior judicial decisions (including two of my owndecisions) then the court should strike it out and theActive Defendants should not be vexed by it.Furthermore, if Mr Tinkler has committed breaches ofCPR part 31.22 by initiating the Panel investigation, asMr Gledhill also submitted, then he should not bepermitted to use the Panel's investigation itself asa means of avoiding the court's scrutiny.[8]In my judgment, the last factor is the decisive one inthe present case. If this is an abusive claim, itshould be dismissed, not stayed. But I reach the sameconclusion applying the principles set out byMrs Justice Gloster in Klöckner (apart from principle (iv)).A serious allegation has been made against the Active Defendants, and they are entitled to anexpeditious hearing and the determination of the strike-outapplications which should not be left for potentiallyyears awaiting the outcome of the Panel investigation.Mr King relied on the fact that Mr Tinkler had toissue and then serve the Active Defendants because thelimitation period was about to expire. But in myjudgment, that is a point in the Active Defendants'favour and against Mr Tinkler. This is a stale claimand it should be resolved as soon as possible.For these reasons, therefore, I dismiss Mr Tinkler'sapplication dated 16 May 2025 and I will now proceed tohear the strike-out applications. __________

Cited in 1 later judgment