The Court of Appeal (Sir Geoffrey Vos MR, Popplewell and Snowden LJJ) has unanimously dismissed Andrew Tinkler’s appeal from the judgment of Leech J in Tinkler v Esken Limited, the latest skirmish in litigation that has run since 2018. The original action between the parties was a claim brought by Esken (formerly Stobart Group) in 2018, alleging, amongst other things, that Mr Tinkler, its former CEO, had acted in breach of his contractual and fiduciary duties to the company – as a result of which it had lawfully dismissed him from employment and twice removed him from the board. Those proceedings were determined largely in the company’s favour by His Honour Judge Russen KC (sitting as a High Court Judge).
Following disclosure in separate Employment Tribunal proceedings, Mr Tinkler asserted that there was material that the company should have, but had not, disclosed in the 2018 proceedings. More than that, he asserted that such non-disclosure was deliberate and that the new material demonstrated that certain of the company’s witnesses had given false evidence before HHJ Russen KC.
He brought fresh proceedings using the standalone cause of action to have a judgment set aside where it had been obtained by fraud: the fraud alleged being the deliberate concealment of relevant documents and perjury of witnesses on behalf of the company. That claim was heard by Leech J in June 2022 and he dismissed all of the allegations of impropriety against the company and its witnesses.
Mr Tinkler appealed primarily on the ground that Leech J had erred in his approach to a claim of this nature, suggesting that the judge had wrongly limited his inquiry to the new material before him (which had not been before HHJ Russen KC) and considered himself limited by HHJ Russen KC’s findings. The Court of Appeal disagreed, finding that Mr Tinkler had not presented a single compelling example of where the judge’s approach had led to an erroneous result. The Court took the opportunity to review the nature of the cause of action, looking back to the fusion of law and equity in the 1870s, and gave guidance to trial judges faced with a claim of this type.
Mr Tinkler also failed in his separate ground of appeal on the ‘materiality’ limb of the test to set aside a judgment for fraud, agreeing with Esken that the correct test was set down in Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328, rather than in Hamilton v Al Fayed (No 4) [2001] EMLR 15. It also agreed with Esken that, in any event, in practice the trial judge had applied both and reached the same conclusion on either basis.
Richard Leiper KC and Daniel Isenberg acted for Esken, instructed by Rosenblatt.
A copy of the judgment can be found here.
