William Andrew Tinkler & Anor v Invesco Asset Management Limited & Ors [2025] EWHC 1624 (Ch)

“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”).”

“Prior to the Fraud Claim and Conspiracy Claim, Mr Tinkler sought an order against Mr Soanes (on a without notice basis) for permission for documents disclosed in other proceedings to be used in support of these new claims. Mr Tinkler’s counsel's note reads: “[Mr Tinkler] seeks permission for 3 purposes ... Prospective permission to bring a claim in unlawful means conspiracy against the Claimants in the 2018 Proceedings — Mr Brady, Mr Ferguson and the Respondent, Mr Soanes, - in connection with matters arising out of the 2018 Proceedings. This claim necessarily requires the judgment to be set aside. If it is not, the conspiracy claim can go nowhere.”

“During the review, material emails that should have been disclosed by Invesco under my Data Subject Access Request were found. I specifically refer to but not limited, emails between Matt Brazier and Stobart Group Directors. Frederick Bouverat and the Stobart Group Directors. In order to assist I understand that since 2017 Matt Brazier has been employed by Invesco as a Capital Structure Analyst. It is therefore somewhat surprising and concerning that he was agreeing wording on behalf of Invesco in respect of RNS releases that were being made by the Stobart Group Board. In respect of Frederick Bouverat and in order to assist your investigation, I invite you to consider the language used in emails and also his involvement in the outcome of the Companies AGM. I am also now aware that Mr Bouverat was instrumental in providing Land Registry searches and offering services of Invesco’s solicitors Messrs Jones Day to Stobart Group in order to make wholly unfounded allegations to the Take Over Panel that I was acting as a concert party with Neil Woodford and others. In short, and in order to make my position clear, both the above employees of Invesco along with Mark Barnett stepped into the arena of the boardroom in working with the directors to secure my removal and may have conspired to damage my reputation in the public domain and also with the FCA and Takeover Panel in making unfounded and damaging allegations.”

“Messrs Clyde and Co who act on my behalf have now written to Messrs Rosenblatt (Esken formally Stobart Group’s legal advisers) in respect of both the Fraud and Conspiracy claim’s that have been issued and served, in order to seek permission to use the documents that were disclosed in the 2018 Proceedings that relate to Invesco. It is now even clearer since I last corresponded, the level of involvement of Mark Barnett, Frederick Bouverat and Matt Brazier in not only 29 May 2018 RNS but also the Company’s AGM. Dependent upon the response received from Messrs Rosenblatt’s, it will be at that point that either a formal application is made to the High Court, or the Letter Before Action is prepared and issued to Invesco with the documents. I have been in business for many years and thought it only right that I draw to your attention to these advanced proceedings, before a Letter Before Action is issued, and following further discovery of Invesco's involvement. I wish to draw to your attention to the history and performance of Invesco’s investment in Stobart Group (now Esken) following the Board involvement of Mr Bouverat, Mr Barnett and Mr Brazier during the period May to July 2018 onwards. 1) Mr Tinklers Involvement in the company 1 September 2017 onwards: 2) Involvement of Invesco in respect of RNS announcements by Stobart Group 25 and 29 May 18 onwards: 3) Invesco's involvement in the instruction of Messrs Jones Day to act on behalf of the Board in June 2018 regarding the Takeover Panel. The representations made in order to persuade the Takeover Panel of a concert party or board control seeking position. 4) Correspondence in respect of the voting before the AGM on the 6 July 2018 and following the AGM.”

“87. The current position. A Conspiracy Claim has been issued in the High Court, in respect of Warwick Brady and Iain Ferguson. That claim is currently stayed by consent and is due before the High Court on 1 March 2024. It is intended to make a “Joinder Application” in which the Court will be invited to join the executives and [IAML] to those proceedings. 88. Furthermore, the Claimant intends to make an application for permission of the Court, to use the material referred to above, and other material, the Claimant is now in possession. 89. The Claimant is confident that there is no defence to the allegations, including the failures to date of [IAML] as set out. In compliance with CPR, the Claimant is prepared to engage in ADR in order to settle this matter.”

“What I am doing separately is creating an index of all documents relevant to the points that have been made in my letters of 24 July and 10 August and providing a narrative to explain each document and the context that it has in the current submissions with respect to Stobart Group’s alleged breaches. As and when each of these are completed, I will forward to you for review. Please note that these indexes and the details of the documents referred to are being provided to you on an understanding that, given the restriction in CPR 31.22, no direct action or reliance will be taken by the Panel on the basis of the index alone. They are being provided to enable the Panel to gain a full understanding of what happened to support their investigation and then, should formal action be taken, we can then apply to the court or Stobart Group Limited, for their consent to the use of the full documents, at which point we will then provide these to you. This is assuming that the Panel has not suggested an alternative route following conclusion of their current review of this point. In light of case law on this point, specifically Marlwood Commercial Inc v Kozeny [2004] EWCA Civ 798, I am confident that consent would be provided by the court in this instance as the public interest factor, coupled with these documents being requested by a regulatory authority, will outweigh any objections that the other side may submit. I will continue to identify the relevant documents and will produce indexes accordingly to the other breaches I have set out in my submissions on the 24 July and 10 August 2023 on Stobart committing frustrating actions when they were aware that an offer may be imminent, in breach of Rule 21 of the Code, these actions being transferring shares out of treasury and entering in to contracts outside of the ordinary course of the business; and purchasing of shares by members suspected of acting in concert in breach of Rule 9.1 of the Code.”

“Publicly available or known to be recorded in Court”

“By extracting these documents relevant to the Panel from the wider disclosure documents it also becomes more clear that the submission made to the Panel regards a suspected concert party between myself and others was based on no genuine concern or evidence. Invesco considered that a Panel submission with the goal to ultimately restrict myself and other dissenting shareholders from purchasing more shares to vote at the AGM, was one tactic in their wider campaign. Reviewing the documents chronologically, it is clear that the decision to make a submission to the Panel is made by Invesco and certain of the Stobart directors, and then they subsequently seek to find evidence or grounds on which to make that submission. Within the index I have highlighted in green those documents that were referred to in court and can be disclosed, and the documents highlighted red were documents not referred to and would require consent of Stobart Group or the court to be disclosed in full (please refer to the understanding in the body of the letter with which I am disclosing the document detail and overview). The narrative against each document sets out its context and relevant point for this purpose as well as an extract of the text from the document demonstrating the point.”

“4. Following the consultation regarding the proposed changes to Rule 21 of the Code on frustrating actions in July 2023, and the implementation of those changes on 11 December 2023, I revisited the additional materials I obtained in 2022. This allowed me to gain a fuller understanding of the events in this case. Based on this review, I submitted observations to the Panel in July 2023 and further submissions since that date up to December 2023, highlighting the potential risks of relaxing these rules, drawing from my experience. I acknowledge that this is a lengthy and detailed document, which was necessary to comply with Section 9(a) of the Introduction to the Code. It has also been necessary for me to reference numerous documents to support my position. Despite Mr. Evans stating during the interview that 'we have our own evidence,' none of that evidence was shared with me, leaving it unclear what evidence, if any, the Panel Executives had been reviewing other than what I was able to share with them. 5. During the recorded interview on 12 November 2024, it became apparent from the transcript that the focus of the Panel Executives seemed limited in scope, which did not allow for a full exploration of my concerns. I also note that Mrs. Shah was unable to remain for the entire interview, and Mr. Evans and Mr. Crawshay did not elaborate on the evidence they referenced. Given these circumstances, I believe it is inappropriate for the same Panel Executives who made the decision on 28 June 2018 to now be involved in investigating this matter. This raises concerns about impartiality, which I hope will be addressed through referrals to the Hearing Committee and the FCA.”

“The Control Conspiracy Control Conspiracy and Control Objectives 21. At a meeting on 1st May 2018 C1 informed the Company’s chairman (Mr Ferguson, the “Chairman”) that he had lost confidence in the Chairman’s ability to drive the previous agreed strategy approved by shareholders in June 2017, and C1 confirmed that he would be voting against the re-election of the Chairman, and invited him to stand down at the next AGM. 22. From the facts and matters set out below, it is properly to be inferred that: 22.1. From 1st May 2018 onwards, Messrs Ferguson, Brady, Coombs and Wood as directors of the Company (“the Four Directors”) conspired to take a series of steps, with the common aims of securing the removal of C1 from the Board and maintaining or securing their own positions within the Company for their own financial gain (collectively, the “Control Objectives”). 22.2. From around 7th May 2018, the Four Directors set-up a campaign called Project Shelley, to undermine C1 as a director and to secure the re-election of Mr Ferguson (“Chairman”) and cause damage to C1 and C2, with the intention of discrediting C1 and persuading shareholders to support the re-election of the Chairman. An aggressive PR campaign was instigated to deliver the Control Objectives as set out. 22.3. From around 8th May 2018 D19, and D20 came to assist the Four Directors in their pursuit of the Control Objectives, thereby joining the conspiracy to do so. 22.4. From around 16th May 2018 D10, D11 and D12 came to assist the Four Directors in their pursuit of the Control Objectives, thereby joining the conspiracy to do so. 22.5. From around 11th June 2018 D16, D17 and D18 came to assist the Four Directors in their pursuit of the Control Objectives, thereby joining the conspiracy to do so. 23. Each of Ds 10-12 and Ds 16-20 (collectively “the Participants”) took steps which were intended to bring about the Control Objectives or to assist others in so doing, as further particularised below. 24. In seeking to achieve the Control Objectives, the Participants used means which were unlawful and/or improper (as particularised below) and acted so as intentionally to tarnish and/or undermine the reputation, and standing of C1. In order to facilitate or achieve this, the directors admitted they would take all possible avenues with the intention of ‘winning’ the AGM by having Mr Ferguson re-elected, being what D10, as the largest shareholder wanted. 25. Further, in seeking to achieve the Control Objectives, the Participants acted in a manner which it was foreseeable would have, and in fact did have, the effect of infringing the shareholder rights of C1, which was an abuse of power, and which offends the constitutional distribution of powers between the different organs of the Company. 26. It was, in turn, intended that C1 would suffer harm in consequence, and further or in any event foreseeable that he would do so, including by virtue of the envisaged loss of his shareholder value as well as position as executive director and in respect of his standing and reputation. 27. It was intended or in any event foreseeable that, upon the removal of C1, the C2 Management Agreement would be terminated, in circumstances in which C2 was controlled by C1, who remained as majority shareholder in and of the same.”

“Conduct prior to 2018 AGM 28. On or around 8th May 2018, the Four Directors agreed to mount a campaign known as Project Shelley in order to pursue, and with the express intention of pursuing, the Control Objectives. The Four Directors subsequently caused or permitted the Company to spend a sum which C1 and C2 understand to be in the region of £3m in doing so. 29. In order to achieve the removal of C1 as executive director and to secure the re-election of Mr Ferguson as Chairman of the Company, the Four Directors began to investigate how they might seek to control and manipulate the pattern of voting at the forthcoming AGM scheduled for 6th July 2018 in order to achieve the Control Objectives. 30. Between 17th and 23rd May 2018, the Four Directors met with D10 and D11 following a script and presentation with, it is to be inferred, the express intention of procuring the assistance of D10-D12 with the pursuit of the Control Objectives. 31. On 24 May 2018, the Four Directors, D19 and D20 realised that over 7 million non-votable shares were held by the Company in treasury, which had a Company capital value of around £18 million, and discussed whether these could be transferred to the EBT so they could be voted in favour of the re-election of the Chairman. 32. Notwithstanding receipt of legal advice that D16-D18 had an overriding fiduciary obligation to act in the interest of the EBT beneficiaries (of which C1 was one such beneficiary), and that such a transfer on terms requiring D16 to vote the shares in favour of the Chairman would create a conflict, and that the voting of such shares required the approval of the Chairman only, to permit the shares to be voted by the EBT, the Four Directors, acting in pursuit of the Control Objectives and with the assistance of D16-D20 executed the transfer. 33. The Four Directors enlisted the assistance of D16, D17 and D18 and that of D19 and D20 to permit the transfer of the shares and enter into an agreement with the EBT to vote the shares as directed by the directors of the Committee, who did not possess the authority to make such a recommendation, which also required full board approval to permit such a transfer to take place. 34. D16, as trustees of EBT would be well aware and should have highlighted the fact that the necessary authority was required from the Company Chairman, as set out within the Trust Deed. Despite never receiving such recommendation, the EBT went onto vote the shares as directed. 35. On 11th June 2018, the Company received confirmation from D16 that they would accept the transfer of all Treasury Shares and vote in favour of the recommendation of the Chairman, despite no such recommendation ever being received. 36. The primary purpose in doing so was for the Participants to secure control of an extra 2.7% voting rights at the AGM. This was an Ultra Vires act done for improper purpose and in breach of the Four Directors’ fiduciary duties, and was an abuse of power for collateral purpose and, thus, an unlawful act which neither Ds 16-20 might, in the normal course of business, lend their assistance to. 37. On 26th May 2018, D19 and D20 proposed the release of a RNS announcement for the purposes of seeking to diminish the standing of C1 and, with it, to further the Control Objectives.” 39. On 29th May 2018, the Director Defendants, with the assistance of D19-D20, issued an RNS announcement at the request of D10-D12: 39.1. Which the Four Directors later accepted was not required for regulatory purposes but which was intended to portray the Claimant in a negative light to influence shareholder voting. 39.2. Which in fact did so. 39.3. Which did so falsely, in that it misrepresented that C1 had inter alia “referring to challenges with C1 which were not germane”. 39.4. Which was published despite C1, by his then solicitors, warning the Four Directors and/or the Company that the contents of the same were inaccurate and misleading. 39.5. Which resulted in the share value of the Company dropping by 16.6%, £144 million of which C1 was an 8% shareholder. 40. Such a course of conduct and included the sending of two submissions to the Takeover Panel; 40.1. The first of which was initially drafted (by way of first draft) on or around 4th June 2018 by Leon Ferera, for Jones Day, instructed on behalf of D10 and with (it is to be inferred) the knowledge and approval of D11 and D12 acting at all times for D10. This was subsequently amended by D20 to take into account further input provided by D10 and/or Jones Day acting for D10 on 7th June 2017 and D11 on 8th June 2018. 40.2. The second submission was drafted by D19 with the input of D10. 40.3. Such submissions were placed and issued on D19’s letterhead at the request of Leon Ferera acting on behalf of D10, and with the approval of D19 and D20. This was done so as to conceal the involvement of D10 and Jones Day; and instead to give the impression that such a submission originated from D19 acting as the Company broker and, in turn, from the Company. 40.4. Such submissions were misleading. Such submissions were predicated upon the contention that C1 was acting as a concert party with others to seek to exert control over the Company when in fact it was the Participants who sought to do so. 40.5. Such submissions failed to mention the role of D10 and Jones Day in instigating, preparing and assisting in the submissions without the knowledge of the full board of the Company and the Take Over Panel. 40.6. Such submissions failed to state Mr Brady had not confirmed his intention before the full board, to stand down if the Chairman was not re-elected. 40.7. Such submissions falsely stated that Cenkos had resigned as the Company broker due to a conflict of interest. In fact, the reason for the resignation was following the issuing of the misleading 29th May 2018 RNS. Such was the concern, and with the brokers experience, Cenkos confirmed a regulatory issue arose, as being the requirement to resign, which was known by the Four Directors. Cenkos, communicated the reason directly to D10 before any submission was made to the Takeover Panel. 40.8. Such submissions falsely stated that the Board was required to address a number of challenges posed in the recent past by C1 as set out within 29th May 2018 RNS, which RNS was produced and was relied upon as part of such a submission. 40.9. Such submissions falsely stated that Mr Laycock was on sick leave when in fact he was in the office. 40.10. It is properly to be inferred that such submissions were prepared, approved and drafted with the intention and effect of preventing C1 from purchasing additional shares in the Company, and thus so as to procure or assist in procuring the Control Objectives. 41. On or around 6th June 2018, the Four Directors (or caused to be signed) and D19 and D20 agreed to a side agreement with D19 to pay an extra £10,000 per week back dated to 8th May 2018 and a £100,000 success fee, to secure the re-election of Mr Ferguson at the AGM and, thus, the Control Objectives. C1 and C2 understand and aver that the fact of a success fee was only known to the Four Directors as well as to D19 and D20, but was otherwise intentionally concealed from others, and was not presented to or in any event approved by the Board, or published in the company’s annual report, something that would have been known to the Four Directors as well as to D19 and D20.” “45. It is to be inferred that the Four Directors…acting with D10-D12, who had already instructed D19-D20 to make submissions to the Take Over Panel, regarding a concert party, were acting so as to prefer their own interests over those of all shareholders to whom they owed duties, and were intent in achieving the Control Objectives. It is to be inferred that such motives, and the fact that the Four Directors’ conduct constituted a breach of their duties owed to the Company and its shareholders, was known to each of the Participants.” 46. On 14th June 2018, the Four Directors removed or caused the removal of C1 as an employee and director of the Company on grounds of alleged gross misconduct. The act of so doing and/or the timing of the same was intended by the Four Directors to:…46.4. Allowing the Four Directors, D10-D12 and D19-D20, to further Project Shelley, and further promote the aggressive PR campaign, causing additional damage to C1 and C2.” “Arrangements for and in respect of voting at the AGM 50. On 19th June 2018, the Four Directors and D19-D20 discussed with Ms. Brace (as company secretary for the Company) the possibility that Mr Tinkler’s LTIPs might be withheld from him following his dismissal. Such discussions were undertaken without the involvement of either Mr Garbutt (as the Chair of the remuneration committee) or Mr Laycock (as the then CFO). 51. On 20th June 2018, the Four Directors authorised and procured the transfer of 1,715,000 Treasury shares to the EBT from the Company’s treasury at a value of around £4.4m. 52. On 25th June 2018, the Four Directors authorised and procured the transfer of 5,320,425 Treasury shares to the EBT from the Company’s treasury at a value of around £13.6m. 53. The transfer of the shares were authorised by the Four Directors and accepted by D16-D18 even though: 53.1. There was no requirement to transfer more than 180,000 shares in the Company to satisfy the LTIP awards which were due to vest on the 22nd June 2018; and 53.2. In any event those awards could have been satisfied direct from Treasury shares. 54. It is, in turn, to be inferred that each of the Four Directors and each of D16-D18, and D19-D20 in fact knew that there was no requirement for the transfer of such a number of shares and, in turn, that such transfers were being conducted for purposes other than to cover any need for shares to vest within the EBT and, in turn, for improper purposes, namely the pursuit of the Control Objectives. 55. On 26th June 2018, the Four Directors, with the assistance of D18, D19 and D20, who was aware of and asked to participate in the purchase, arranged the sale of 2,700,000 shares from the EBT, to shareholders known to be willing to vote at the AGM in favour of resolutions intended to achieve the Control Objectives, and to Mr Brady (who was known to be similarly willing) at a price of 236 pence per share. 56. Further D19 by D20 confirmed that the sale of the shares had taken place, and the shares had gone into “friendly hands”

“69. Without prejudice to the generality of the foregoing, C1 and C2 note and aver that the Control Objectives would not have been achieved but for: 69.1. The termination of C1’s employment and role as director with effect from 14th June 2018 and again as director from 7th July 2018. 69.2. At or in connection with the AGM 69.2.1. The transfer of shares from treasury to the EBT in excess of the numbers required.69.2.2. The sale of 2,703,720 shares to parties who had committed to vote in favour of the re-election of Mr Ferguson. 69.2.3. The overvoting of shares in favour of the re-election of Mr Ferguson. 69.2.4. The voting of the 3,417,891 Time Barred Proxy Shares in favour of the re-election of Mr Ferguson. 69.2.5. The exertion of pressure on D16 and, in consequence, Ds 16-D18 election to permit the EBT shares to be voted in favour of resolutions which had as their aim achievement of the Control Objectives.” “70. Conversely, but for the matters set out above: 70.1. C1 would have remained as, or otherwise been re-elected as, a member of the Board 70.2. C1 would have revealed the Control Conspiracy, and the misuse of Company funds, along with the parties involved in the providing of dishonest assistance to secure the re-election of the Chairman. 70.3. Mr Ferguson would not have been re-elected as Chairman. 70.4. Upon Mr Ferguson not being re-elected, the other non-executive directors (being Mr Coombs and Mr Woods would have tendered their resignation). C1 and C2 note, in this respect, upon the announcements made by Mr Coombs and Mr Woods, on 25th May 2018, and prior to the AGM of 6th July 2018, announcing their intention to resign as non-executive directors of the Company in the event that Mr Ferguson was not re-elected as Chairman.”

“97. Further, as a result of the Control Conspiracy C1 sustained a crystallised loss in the value of his shareholding in C1, in that: 97.1. As of early May 2018: 97.1.1. C1 owned 27,326,811 shares in the Company. 97.1.2. The market value of such shares was approximately 251p per share. 97.1.3. The market value of C1’s shareholding was, in turn, approximately £68,560,176. 97.1.4. C1 in fact intended to sell down 10 million shares, having instructed the broker, to sell at a strike price of £2.90, when achievable. C1 did in fact sell shares in September 2017 at over £2.90 per share. 97.2. As a result of the Control Conspiracy: 97.2.1. C1 was required to and did sell 27,314,811 such shares in the Company, representing substantially his entire shareholding, between July 2018 and January 2020. 97.2.2. C1 was required to and in fact did so because inter alia 97.2.2.1. He required such funds to fund his conduct of the legal proceedings (as referred to above), which would not have eventuated but for the fact of the Control Conspiracy and the fact of the achievement of the Control Objectives. 97.2.2.2. He was, in turn, unable to await the attainment of a target sale price for such shares but was, instead, required to sell as dictated by the need for funds. 97.2.3. Further, the value of the shares in the Company decreased as a direct and foreseeable result of the Control Conspiracy and/or the steps taken therein, and/or the adverse publicity and/or market concern which arose as a result of the course of conduct involved in and/or the manner of the pursuit of the Control Objectives. 97.2.4. C1 in fact received the sum of £36,518,015 for so doing.” 97.4. In turn: 97.4.1. But for the fact of the Control Conspiracy and the fact of the achievement of the Control Objectives, C1 would have received at least an additional £31,747,351 for the sale of the same, being the difference between the value of such a shareholding as of 28th May 2018 (£68,560,176) minus anticipated costs for the realisation of such a shareholding (estimated at £290,809) minus the sum of £36,518,015 in fact received; alternatively 97.4.2. In any event C1 sustained loss in the form of a loss to or a series of losses to the value of his shareholding in the Company, to be assessed. 98. Further, a result of the pursuit of the Control Conspiracy and the achievement of the Control Objectives, C2 suffered the cancellation of the 5-year Management Agreement entered into between the Company and C2 and pursuant to which C2 would otherwise have remained entitled, but for the pursuit of the Control Conspiracy and/or the achievement of the Control Objectives. The Court will be invited to assess the amount of such losses.”

“14.1— Admissions made before commencement of proceedings 14.1(1) A person may, by notice in writing— (a) admit the whole or any part of another party's case before commencement of proceedings (a "pre-action admission"); (b) withdraw a pre-action admission before commencement of proceedings, if the person to whom the admission was made agrees. (2) After commencement of proceedings— (a) any party may apply to the court for judgment on the pre-action admission; and (b) the maker of the pre-action admission may apply to the court for permission to withdraw it.”

“In boxing terms, the judges have scored the round and no good private or public interest is served by continuing the argument about a single punch.”

“Failure to use reasonable diligence. As for the relevance of a claimant’s failure to use what the court might consider to be reasonable diligence in finding out facts relevant to whether he has a possible claim, it may be that this could possibly be relevant to the enquiry described by Lord Bingham, depending on the circumstances. On the other hand, it does not seem to me that there can be a general principle that a potential claimant is under a duty to exercise reasonable diligence, not yet having brought proceedings asserting a particular claim, to find out the facts relevant to whether he has or may have such a claim. Moreover, I do not see how it can be relevant at all that the claimant may have failed to use due diligence in attending to his own interests at the time of the transaction or the events giving rise to the claims asserted. Unless, on the merits, that is a complete and inevitable defence to the claim, it seems to me to be entirely irrelevant to the enquiry which is necessary under Johnson v Gore Wood. Nothing in Sir James Wigram’s observations in Henderson v Henderson supports that. That, however, is the context of the Master’s comments on lack of reasonable diligence in paragraphs 70 and 72. If relevant at all, an enquiry as to any suggested lack of diligence on the part of the claimant would have to involve considering the circumstances of the particular claimant, including what knowledge he did have of the facts at any relevant stage, in order to decide whether he knew enough to put him on enquiry so as to try to find out more. In this context, as generally, it is also relevant that the onus is always on the defendant to show that the claimant’s conduct is an abuse of process.”

“79. The fact that a previous claim was struck out (rather than having the issues decided at trial) is no bar to the second claim being struck out as an abuse (see Panton & Anor v Vale of White Horse District Council & Anor [2020] EWHC 167 (Ch)). 80. The first of Mr Spalton’s points was that the Court of Appeal has found there was no unlawful act. I am not persuaded that that is correct. In my view the Court of Appeal did not decide whether Judge Waksman had been correct to decided that there was no prospect of showing the existence of exceptional circumstances: see per Asplin LJ at [68]. I find it hard to see that if a point has been appealed against, and that appeal was not resolved, it can be an abusive collateral attack to take the point in subsequent proceedings. 81. But I agree with Mr Spalton that the Court of Appeal upheld Judge Waksman’s finding that there was no real prospect of making good an allegation that BDO combined with Barclays to use unlawful means: see per Asplin LJ at [60] and Nugee J at [73]. 82. In those circumstances it seems to me that the new claim, insofar as it relies on the same conspiracy as was alleged in the Barclays claim, is quite clearly a collateral attack on that finding. Indeed it is only collateral at all because BDO was not a party to the Barclays claim: that aside, the new claim is a full frontal attack on a critical finding made against Elite and Decolace in the earlier Barclays claim.This is therefore in my view a paradigm case of a collateral attack and it clearly renders the new proceedings an abuse of process unless the position can be saved by one or other of Mr Mayes’ two points.”

“The question whether the defect in the pleading could be cured was simply whether a pleading could properly be formulated to advance a claim against PZU which had a real prospect of success. That would not require it to be shown that there was a cause of action which was bound to succeed, but merely one which was arguable in the sense that it had a real, as opposed to fanciful, prospect of success. This is the merits test for striking out a statement of case under CPR 3.4(2)(a), for reverse summary judgment, and on an application to amend: see Kawasaki Kisen Kaisha Ltd v James Kemball Ltd. [2021] EWCA Civ 33 [2021] 3 All E.R. 978 at [16]-[18].”

“31.22— Subsequent use of disclosed documents and completed Electronic Documents Questionnaires 31. 22 (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where— (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree. (2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. (3) An application for such an order may be made— (a) by a party; or (b) by any person to whom the document belongs.”

“52. There are a few further principles which were not in issue in that case, but which are material for the purposes of the case before me. 53. The first is that the burden is on the party making the application to demonstrate cogent and persuasive reasons for allowing the collateral use sought. In Crest Homes plc v Marks [1987] AC 829, 860 Lord Oliver of Aylmerton stated that the court would not permit the use of disclosed documents for a collateral purpose “save in special circumstances and where the release or modification would not occasion injustice to the person giving discovery”. 54 Secondly, what constitutes “use” of a document for the purpose of CPR 31.22 is very broad – perhaps more so than most litigators might think. On one view the court’s permission is required even to review the documents. In truth this is an aspect of the drafting which is difficult. However the courts have not reacted to that difficulty by adopting a laissez faire attitude. In IG Index plc v Cloete [2015] ICR 254, Christopher Clarke LJ emphasised that the restriction extended not only to the documents but to the information contained therein, and (at para 40) that the restriction extended to: “(a) use of the document itself e.g. by reading it, copying it, showing it to somebody else (such as the judge); and (b) use of the information contained in it. I would also regard “use” as extending to referring to the documents and any of the characteristics of the document, which include its provenance.” “59. On the basis of these authorities it seems that: (i) Absent some provision in the relevant order, doing anything other than realising, in the course of review for the purposes of the proceedings in which documents are disclosed, that a document or documents would be relevant to other proceedings actual or contemplated, may constitute a collateral use. (ii) The best course is therefore to seek permission for collateral use to review as soon as the issue is identified. (iii) It would then be necessary to apply for permission for collateral use to deploy the documents if a (permitted) review concluded that it was desirable to use them. 60. Moving on from the more difficult aspects of this area, it seems to be quite clear (were it not self-evident) that using information and/or documents from one set of proceedings to threaten a third party falls squarely within the scope of the restriction on collateral use (see, for example, Birss J in Grosvenor Chemicals Ltd v UPL Europe Ltd [2017] EWHC 1893 (Ch) at [162]). 61. What happens if this proper course is not taken? The answer is that the court has a jurisdiction to grant retrospective permission, but will exercise it only in limited circumstances.”

“First, there are taken to fall under the rule certain categories of document, in particular those coming within the pre-reading of the judge. It does not have to be established that the judge has actually read the documents: once the category is established, it is for a party alleging that they have not in fact been read to establish that fact, something that has to be achieved without inquiry of the judge: see Barings v Coopers & Lybrands [2000] 1 WLR 2353, 2367, para 53. Second, it therefore follows that not everything that is disclosed or copied in court bundles falls under this rule: the Connaught approach is restricted to documents to which the judge has been specifically alerted, whether by reference in a skeleton argument or by mention in the "reading guide" with which judges are now provided at least in patent cases. Third, since the Connaught approach is based upon the assumed orality of a trial, documents, however much pre-read by the judge, remain confidential if no trial takes place, but the application is, for instance, dismissed by consent, albeit by a decision announced in open court: see SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498.”

“I do not find it necessary to decide whether I have a jurisdiction to grant the plaintiffs a retrospective leave. It may be that the court does have some such jurisdiction but, if so, it seems to me that the circumstances in which it would be proper to exercise it would be rare. It is one thing to release a party from an undertaking to the court so as to permit him to do in the future that which he has been prevented from doing in the past. It is another thing for the court to find, as I have, that a party has abused the process of the court by his breaches of an undertaking to it and for it then to give that party a retrospective release from the undertaking so as to wipe away the abuse of the process which he has committed. If I do have the jurisdiction, I can anyway see no good reason to grant any such retrospective leave. Undertakings of the present sort are important ones. They have been the subject of considerable discussion in the reported cases over recent years and their nature and effect are, or should be, well known to practitioners. It seems to me that if, as I have found, the prosecution of the 1995 action to date has involved an abuse of the process then, in a sense, that finding by itself suggests that the action should be struck out. I do not, however, consider that that result must inevitably follow. If, in principle, I considered it just to allow the plaintiffs to use the discovered documents for the purposes of a separate action raising the same claims as the 1995 action, then, absent any special considerations pointing in a different direction, there would in my view be much to be said for declining to strike out that action and for giving leave to the plaintiffs to make use of the documents for its further prosecution. Such an order would, no doubt, amount to a de facto validation of what had happened to date, although the court could perhaps reflect its disapproval of that by the making of appropriate costs orders. The alternative course would be to strike the action out, with the usual orders as to costs, but to give leave to the plaintiffs to start a new like action. The latter course is one which would no doubt visit a greater penalty on them and it may be that, in appropriate cases, it would be the right type of order to make. In the circumstances of the present case, however, I would, in principle, subject to the special consideration to which I shall come, favour the former alternative, which would be likely to achieve both an overall saving of costs and the prospect of an earlier trial of a proper claim.”

“772. It was argued on behalf of Mr Tinkler (picking up phrases that had been used by one or more of the Four Directors in evidence) that the majority had seriously mischaracterised what had been his perfectly constitutional and proper proposal that shareholders should vote on Mr Ferguson’s directorship as an “attack on the Company” and a “coup”

“14. The Claim Form was issued on 8 June 2018 (but the Particulars of Claim were not served until 26 June 2018). On 17 December 2018, i.e. after the Stobart Action had been tried, but before judgment was handed down, I determined issues relating to the meaning of the Announcement for the purposes of the Malicious Falsehood Action ([2018] EWHC 3563 (QB)) (“the Meaning Judgment”). The terms of the Announcement are set out in the Meaning Judgment ([4]). 15. I found (at [39]) that the single meaning of the Announcement for the purposes of the defamation element of the Malicious Falsehood Action was: (a) The Claimant had presented a series of challenges to the Board of Stobart which included those set out in [paragraphs 39 to 43 of the Announcement], the most recent of which was his opposition to the re-election of Iain Ferguson as Chairman of Stobart. (b) A vote to remove the current Chairman would weaken Stobart's corporate governance, create instability, present a number of serious risks to Stobart, identified in [paragraphs 45 to 49 of the Announcement], and would not be in the best interests of the shareholders. (c) The Claimant's behaviour was disruptive; and, in relation to the challenges identified in (a) unreasonable and his opposition to the re-election of the Chairman was regrettable and risked destabilising Stobart. 16. I also held that meaning (a) was factual and not defamatory of Mr Tinkler and that meanings (b) and (c) were expressions of opinion: [40]-[44]. Only meaning (c) was defamatory of Mr Tinkler, but not seriously enough to raise an inference of serious harm to reputation under s.1 Defamation Act 2013: [45]. In consequence, if the defamation element of his claim was to continue, Mr Tinkler would have to take on the burden of establishing, by evidence, that the requirements of s.1 were met: [46]. 17. As for the balance of the Malicious Falsehood Action, I held (at [56]) that, based on the Mr Tinkler’s originally pleaded meaning, the following was an available meaning for the purposes of malicious falsehood (“the Malicious Falsehood Meaning”): (a) Mr Tinkler destabilised the Board at a crucial time for the business; and/or (b) Mr Tinkler required the Board to deal with challenges, including: i. the settlement of financial issues arising from a previous related party transaction when Mr Tinkler was CEO; ii. a proposed selective buy-back of part of Mr Tinkler's stake in Stobart; iii. a proposed additional ex-gratia bonus for Mr Tinkler 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. To the extent that Malicious Falsehood Meaning (a) contained opinion, as I had found, then Mr Tinkler would have to take on the burden of proving that it was false and published by the Defendants maliciously (see [16] in the Meaning Judgment). 18. Mr Tinkler’s appeal against the Meaning Judgment was dismissed by the Court of Appeal on 15 May 2019 ([2019] EWCA Civ 819). Longmore LJ held that meaning (c) for the defamation claim, was “very much at the lower end of the scale” and one from which no inference of serious harm to reputation could be drawn [28]. 19. Little happened in the Malicious Falsehood Action between the Meaning Judgment on 17 December 2018 and the appeal hearing on 3 April 2019. Importantly, however, it was during this period that the Stobart Judgment was handed down, on 15 February 2019. 20. A week prior to the Court of Appeal handing down its judgment on 15 May 2019, a hearing took place before Nicol J to deal with disputed amendments that the Claimant wished to make to his Particulars of Claim consequent upon the Meaning Judgment. One of the issues raised at the hearing was the adequacy of Mr Tinkler’s pleaded case on harm to reputation. As noted above (see [16]), one consequence of the Meaning Judgment was that Mr Tinkler was now required, as part of his defamation claim, to demonstrate serious harm to his reputation caused by publication of the Announcement. 21. In his reserved judgment, handed down on 14 June 2019, Nicol J gave Mr Tinkler permission to make limited amendments to his Particulars of Claim ([2019] EWHC 1501 (QB)). The Judge held that Mr Tinkler was required to give full details of the facts and matters on which he relied on the issue of serious harm ([17]) and noted that his existing Particulars of Claim did not include any plea of special damage ([21]). It is very clear from Nicol J’s judgment that a central issue had been the adequacy of Mr Tinkler’s claim for damage caused by the publication of the Announcement (see [34]). Of particular importance is the fact that Nicol J’s order gave Mr Tinkler the opportunity to revise §§11.3.3 and/or 11.3.4 of his Particulars of Claim to make clear his case on harm/damage. The Judge ordered him to give Further Information about his case that had been sought by the Defendants on this issue. In light of this, I am satisfied that, since at least 8 May 2019, Mr Tinkler has been well aware that the Defendants have been challenging the adequacy of his case on the harm or damage caused by the publication of the Announcement. I am also satisfied that the Court has given Mr Tinkler the fullest opportunity to advance his best case. 22. On 28 June 2019, Mr Tinkler duly served his Amended Particulars of Claim in the Malicious Falsehood Action pursuant to Nicol J’s Order. Then, on 10 September 2019, by consent, Mr Tinkler served Re-Amended Particulars of Claim. The principal effectof these re-amendments was that Mr Tinkler abandoned his defamation claim in respect of the Announcement, leaving only the claim for malicious falsehood in respect of the Malicious Falsehood Meaning.”

“70. Issue A is whether Mr Tinkler had destabilised the board of Stobart at a crucial time for the business and whether the Defendants held the view that he did at the relevant time. This is Malicious Falsehood Meaning (a), which Mr Tinkler contends is false (see §§8.1-8.2 Re-Amended Particulars of Claim): he did not destabilise the board. The Defendants contend that this meaning is objectively true. Separately, even if Mr Tinkler established the falsity of this meaning, he would have also to establish that it was published maliciously. As Malicious Falsehood Meaning (a) has been ruled to be an expression of opinion, Mr Tinkler has to establish that the relevant Defendant, at the time the Announcement was published, did not actually hold the opinion that Mr Tinkler had destabilised the board (see [16] in the Meaning Judgment and [19] above)). 71. Resolving this issue in the Malicious Falsehood Action would involve relitigating a significant part of the Stobart Action and would inevitably lead to a position where Mr Tinkler would be inviting the Court to make findings of fact contrary to the facts found in the Stobart Action. To that extent, it would involve a collateral attack on the decision in the Stobart Action. To take the clearest example, Mr Tinkler’s case in the Malicious Falsehood Action on Issue A is that he “had not destabilised the board at a crucial time for the business” (§8.1 Re-Amended Particulars of Claim). In the Stobart Judgment, Mr Tinkler was found to have “foment[ed] shareholder dissatisfaction” [735] and engaged in “covert action .... [not] acting in the best interests of [Stobart]” which “had a destabilising effect upon [Stobart’s] management” [740] and led to “a situation of chaotic destabilisation within [Stobart] that Mr Tinkler had brought about” [777]. To succeed on the issue of falsity in the Malicious Falsehood Action, Mr Tinkler would be asking the Court to make a finding contrary to the finding made by HHJ Russen QC in the Stobart Action. In addition, on the issue of malice (the state of minds of the Defendants), and whether, at the date of publication of the Announcement, they held the opinion that Mr Tinkler had destabilised the board of Stobart at a crucial time for its business, to succeed in the Malicious Falsehood Action, the Court would again have to be invited to make findings contrary to findings in the Stobart Action. HHJ Russen QC found that the Four Directors: “… were justified in believing they were facing the start of an attempted coup” [777] and “considered that [Mr Tinkler’s] challenge to Mr Ferguson… was destabilising [Stobart]” [792].”

“71. In July 2023, a consultation took place regarding the proposed changes to Rule 21 of the Takeover Code on frustrating actions, and certain changes were implemented on 11 December 2023. When considering what representations to make as part of the consultation process in mid 2023, I revisited the additional materials which I had obtained in 2022. This allowed me to gain a fuller understanding of the events in this case. Based on this review, I submitted observations to the Panel in July 2023 and further submissions since that date up to December 2023 and indeed have since been interviewed by the Takeover Panel in November 2024, and have provided further written submissions on 27th February 2025. 72. Although I had indicated the possibility of a claim against IAML in correspondence in December 2020 and March 2021, this correspondence indicated that IAML’s role ought to be investigated further. As Ms. Sutcliffe’s statement indicates, I did not send a letter of claim at this stage. The reason for this was that I was not yet in a position to do so. Rather, I was not in a position to do so until after the Fraud Claim had concluded, and indeed after undertaking the further review of additional documentation in 2023, as I set out above.”

“Q. Well, I'm going to come on and look at what you did as well, but let me just conclude this. You brought in Mr Woodford into this idea of getting rid of Mr Ferguson for this benefit, you brought in Mr Wood and Mr Day as presenting a credible front for your planned coup. A. Definitely not. It was Mr Wood and Mr Coombs decided to put their name forward in the press on the 25 May RNS to say that if Mr Ferguson were not re-elected they would stand down, and that was supported by Invesco, and Invesco had hands all over this. The involvement -- they've been involved with David Arch, the emails that I've seen through disclosure discuss me -- an investor like Invesco would even offer support with lawyers to go to the takeover panel to actually get the takeover panel to go to the takeover panel to actually get the takeover panel to say that we were going to be a concert party was ridiculous, I thought.”

“67. I understood at the hearing that you fully understood the importance of these emails and My Lord even referred to the 2 million shares been sold to friendly hands. Reference (CB4 Tab 4 Pl05B-Pl06E] 68. I am disappointed that My Lord, did not even refer to this evidence which I say clearly demonstrated the Dishonest Assistance of Rosenblatt, when I now know that the spreadsheet that Mr Leiper handed to Judge Russen to persuade the judge that the voting was correct, was simply untrue, and known to be untrue by Rosenblatt. This My Lord is clear evidence of Conspiracy, which undermined the credibility of both Mr Ferguson and Mr Brady.”

“In relation to the transfer of shares to the EBT and the manner in which he chose to exercise proxy votes at the AGM, he clearly relied upon legal advice which he believed supported his position. Whether or not good faith on the part of a director and a belief that he is acting in the best interests of the company are by themselves sufficient to put the relevant action beyond the scrutiny of the court is a legal question to be explored further, but it was clear to me from Mr Ferguson’s evidence that he genuinely believed he had the Company’s best interests at heart.”

“It is now revealed from the disclosure, emails from the Second Defendant, confirms this is what our largest shareholder wanted. In evidence, both the Second and Third Defendant confirmed this is what our largest shareholder wanted. Furthermore, had disclosure been provided, it would have identified the frustrating actions being undertaken, and the misuse of the powers of the directors for improper purpose. It would also have identified the issues in respect of the “Over Votes” and voting Proxy votes contrary to the provisions set out under Section 327 of The Companies Act 2006, and The Companies (Guernsey) Law 2008. This would have rendered the votes as being void, and the outcome, being the Chairman not validly re-elected at the AGM [P,216].”

“190. Ultimately, as referred to in paragraph 127(iii) above, having originally denied that there was any such plan or strategy, under cross examination Mr Brady accepted that what he had said to this effect in paragraph 57(k) of his witness statement was not correct. I am satisfied that the evidence is to the effect that, following Mr Soanes’s resignation, Esken did determine that it should seek to get out of, or disentangle itself from, the Management Agreement if it could do so given the obligation to pay an ongoing Retainer Fee for a considerable period of time. However, the evidence is to the effect that, at that time, it was unable to satisfy itself that it had the grounds to terminate the Management Agreement, and so embarked on a plan or strategy of effectively sitting back and seeing whether or not SCL was capable of performing its obligations under the Management Agreement, with a view to terminating the Management Agreement when and if circumstances permitted. 191. Further, as I have concluded in paragraph 130 et seq above, Mr Coombs’ position, following Mr Soanes’s departure, was that he did not, in reality, want the Management Agreement to work, and wished to “untangle”, as he put it, Esken therefrom, such that he did not thereafter do anything to help to make the Management Agreement work, and sought to make SCL’s life more difficult.” “194. However, I agree with a submission made by Mr Leiper that Esken’s motives are, as such, irrelevant if, in fact, circumstances arose in which Esken was entitled validly to terminate the Management Agreement.” “201. Thus, in short, I do not consider that the plan or strategy that I have found was adopted by Esken, of itself, provides an answer to Esken’s claim that there were breaches of the Management Agreement that entitled it to terminate the latter pursuant to clause 8.2.3, or that it was open to Esken to terminate pursuant to clause 8.2.2 on the ground that SCL had ceased to carry on its business or substantially the whole of its business, if the facts established that to be the case. However, it might explain why more was not done or achieved by SCL, and thus might potentially excuse certain conduct that might otherwise been regarded as amounting to a breach of the Management Agreement.” “207. I am satisfied that, in these circumstances, Esken was entitled to serve the Termination Notice pursuant to clause 8.2.2 thereof, and that the effect thereof was to terminate the Management Agreement as at 12 March 2019.”

“78. When preparing my Particulars of Claim, I was careful to base my pleaded claim only on documents that have been referred to in public. 79. Despite having access to my initial disclosure, I note that the Applicants have not identified a single document which they suggest has not been referred to in Court before, but instead the Applicants appear to seek to reverse the burden on me to show otherwise, in a way which I consider to be inappropriate. 80. It is difficult to address the points which the Applicants seek to raise when the Applicants have not listed particular documents which they suggest I have used when I ought not to have done. If the Applicants later identify particular documents, I am happy to respond further. 81. However, for the purposes of this statement I note that a large number of documents were either read to or reviewed by the Court or referred to at hearings held in public both during the course of the Fraud Trial and also, more pertinently, in the hearing of the strike-out application in the Conspiracy Claim. I am not aware of having used documents for the purpose of bringing the Current Claim which have not been either read to or by the Court, or referred to, at a hearing which has been held in public.”

“I attach a revised submission to the Panel, which is intended to address the points raised by Dipika Shah when I spoke to her on Tuesday, As discussed with David yesterday, I have changed the emphasis of our approach.”