WILLIAM ANDREW TINKLER v ESKEN LIMITED

This is an application to set aside a High Court judgment of 15 February 2019 on the ground that it had been obtained by fraud. The court applied the three-limb Takhar framework (dishonesty, materiality and new evidence) and considered related authorities (including Royal Bank of Scotland v Highland and Hamilton v Al Fayed) on materiality. The judge analysed alleged categories of misconduct: deliberate deletion of electronic messages, deliberate non-disclosure of documents, providing false evidence (perjury) and payments to a witness (loan/consultancy) as inducement.

Key findings: the claimant did not prove conscious and deliberate dishonesty by SGL (or by individuals whom SGL must answer for) in relation to the core allegations; specific contested communications (WhatsApp/Telegram exchanges, the "StobCap" material, emails about LTIPs and the Laycock side letters) either were not deliberately withheld, were not in SGL's possession in the form alleged, or were not cogent evidence of perjury; where documents were not recovered from particular custodians the court accepted other plausible explanations (archiving/migration limitations) rather than deliberate deletion; the loan and consultancy arrangements with Mr Soanes were unfavourable commercially but there was insufficient evidence that they were paid as the price for giving false evidence. Applying the Highland/Hamilton materiality tests, the new evidence would not have entirely changed the way the first trial judge reached his conclusions, nor was there a real danger that the undisclosed material affected the outcome. The application to set aside the earlier judgment was dismissed.

This claim sought to set aside the 15 February 2019 judgment in Stobart Group Ltd v Tinkler (the "2018 Claim") on the ground that that judgment had been obtained by fraud. The fraud alleged was (broadly) that witnesses for Esken Ltd (formerly Stobart Group Ltd: "SGL") and other persons acting for it deliberately failed to disclose documents, destroyed or deleted electronic messages, and gave knowingly false evidence at the 2018 trial; and that SGL had induced or rewarded a key witness, Mr Ian Soanes, by way of a loan and consultancy arrangements in return for evidence.

Background and parties: SGL (a Guernsey company listed on the LSE) and its board were in dispute with long-serving executive director and former CEO Mr William (Andrew) Tinkler. The board were led by Mr Iain Ferguson (chair) and Mr Warwick Brady (CEO). Key commercial matters included Project Wright (a proposed Flybe acquisition), incentive arrangements (LTIPs, SEIP and SAIP), and votes at an AGM. Proceedings in the High Court (2018 Claim) resulted in a judgment finding that Mr Tinkler breached duties and that his dismissal and removal were lawful; the present action sought to set that judgment aside for fraud.

Nature of the application: Mr Tinkler invoked the court's jurisdiction to set aside the judgment for fraud. He alleged three categories of wrongdoing: (i) concealment/non-disclosure or destruction of documents (including WhatsApp/Telegram messages and email archives); (ii) perjured or knowingly false witness evidence at the 2018 trial; and (iii) payments and contractual arrangements (an £80,000 loan agreement and proposed consultancy) with Mr Soanes as an inducement or reward for giving false evidence.

Issues framed by the court:

• Applicable legal test: the three-limb Takhar test (conscious, deliberate dishonesty; materiality; new evidence), and the relation of Highland and Hamilton tests on materiality.
• Whether particular documents or communications were deliberately withheld or destroyed.
• Whether particular witnesses (principally Messrs Brady, Ferguson and Soanes) gave knowingly false evidence attributable to SGL (including under Odyssey Re principles) or were suborned.
• Whether the loan/consultancy arrangements were consideration for false evidence.

Court’s reasoning and findings (concise):

• The court adopted the Takhar/Highland framework and emphasised the high threshold for setting aside a judgment. It held that Limb 3 requires only that the evidence was not deployed in the earlier proceedings; Limb 2 must be assessed by reference to the impact on the evidence supporting the original decision, not on what a retrial might produce.
• The judge evaluated witnesses, documentary exhibits and expert evidence (including forensic imaging and archive migration explanations). He assessed whether alleged deletions occurred, whether material was within the scope of the earlier disclosure searches, and whether any failures were deliberate and dishonest.
• Findings of fact: the judge found no cogent proof of conscious and deliberate dishonesty by SGL or by key individuals so as to be an operative cause of the 2018 judgment. Specific findings included that (a) messages and documents claimed to be intentionally withheld or deleted by Mr Brady or Mr Ferguson were, on the evidence, not shown to have been deliberately destroyed to obstruct disclosure (technical and archive explanations accepted in several instances); (b) Mr Brady’s and Mr Ferguson’s contemporaneous conduct and explanations did not demonstrate perjury or deliberate lies at the earlier trial; (c) the loan to Mr Soanes and the unpaid/limited consultancy work were on unfavourable terms but there was insufficient evidence that they were demanded and paid as the price of perjured evidence; (d) the committee and board decisions (including the use of Article 89(5) and the transfers to the employee benefit trust) were examined in detail and, save for one transfer of shares the court considered voidable for improper purpose at the first instance, the alleged fraud did not establish that the earlier judgment was procured by conscious and deliberate dishonesty.
• Materiality: even if some new material had been undeployed in 2018, the court concluded it would not have entirely changed how the trial judge reached his decision; the Highland/Hamilton enquiry was applied and the claimant did not cross the high threshold.

Conclusion: The court dismissed the application to set aside the 2018 judgment for fraud and refused to order restitution of sums under the Tomlin order or repayment of the costs ordered in the 2018 proceedings.

The application to set aside the 15 February 2019 judgment was dismissed. The court applied the Takhar three-limb framework (dishonesty, materiality, new evidence) and found that the claimant did not establish conscious and deliberate dishonesty by or attributable to SGL that was material and causative of the earlier judgment; technical and evidential explanations accounted for missing or unrecovered material; the loan/consultancy with Mr Soanes was unfavourable commercially but insufficient to prove payment for perjured evidence; on the Highland/Hamilton materiality tests the new material would not have entirely changed the way the earlier judge reached his decision.