The High Court (Leech J) has dismissed the claim brought by Andrew Tinkler that the earlier judgment of His Honour Judge Russen KC (sitting as a High Court Judge) in Stobart Group Ltd v Tinkler [2019] EWHC 258 (Comm) (“the Russen Judgment”) was obtained by fraud.
Mr Tinkler brought the claim against Esken Limited (the current name of Stobart Group) (“the Company”), seeking to set aside the Russen Judgment – in which the Court had found that Mr Tinkler, Esken’s former CEO and executive director, had been in breach of his contractual and fiduciary duties to the Company, including by briefing selected shareholders against the Board, agitating for the removal of the Chairman, and writing to shareholders and Company employees regarding his dispute with the other directors.
Mr Tinkler sought to invoke the Court’s jurisdiction to set aside the Russen Judgment for fraud – a fresh cause of action, recently examined by the Supreme Court in Takhar v Gracefield [2020] AC 450. Leech J identified three limbs to the test that must be satisfied to engage that jurisdiction: (1) the successful party (or a person for whom it must take responsibility) must have committed conscious and deliberate dishonesty; (2) that dishonest conduct must have been material to the original decision; and (3) there was new evidence before the Court, either not given or disclosed in the earlier proceedings (although the Supreme Court had held in Takhar that there was no requirement that the fraud could not have been discovered with reasonable diligence).
In the present case, Mr Tinkler had disclosed to him certain documents in separate Employment Tribunal proceedings by Mr Soanes, who had appeared as a witness for the Company in the original High Court proceedings, which Mr Tinkler contended: (a) were material to and should have been disclosed by the Company in the original claim, but had been deliberately deleted or not disclosed; and (b) demonstrated that certain witnesses for whom the Company was responsible had given false evidence in the original proceedings.
The Court dismissed Mr Tinkler’s claim. In short, it did not accept that the documents on which Mr Tinkler relied bore the meaning that he placed on them, and did not accept that they would have realistically been material to the original proceedings (whether one applied the test for materiality from Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328 or Hamilton v Al Fayed (No 4) [2001] EMLR 15, to the extent that those tests differed at all). Moreover, Leech J was unwilling to accept that any documents had been deliberately deleted or suppressed from disclosure by the Company’s CEO or Chairman, or that the Company’s witnesses had knowingly given false evidence to the Court. The Company had not also, as Mr Tinkler had further alleged, provided Mr Soanes with a loan or consultancy work as the price or reward for giving false evidence on its behalf.
Richard Leiper KC and Daniel Isenberg acted for the Company, instructed by Rosenblatt.
A copy of the judgment can be found here.
