WILLIAM ANDREW TINKLER v ESKEN LIMITED

A judgment obtained by fraud may be set aside only where there is conscious and deliberate dishonesty, materiality, and new evidence not deployed in the original proceedings. Materiality concerns whether the fraud was an operative cause of the original result. The court assesses the new evidence against the existing judgment rather than conducting a retrial. Fundamental evidence affecting the integrity or credibility of the process may be material even if collateral. The alleged non-disclosure, deletion and false evidence were not proved dishonestly or materially, and the claim was dismissed.

Esken, formerly Stobart Group, obtained declarations in 2019 that Mr Tinkler had been lawfully dismissed and removed as a director. Mr Tinkler sought to set aside that judgment for fraud and claimed restitution of sums paid under a Tomlin order and repayment of his costs. He alleged a premeditated removal plan, deliberate non-disclosure and destruction of documents, false evidence, and collusion involving Mr Soanes. The central issues were whether the three-limb fraud test was satisfied and whether the new evidence could materially affect the original judgment.

1. Disposition. The claim to set aside the 2019 judgment for fraud was dismissed, together with the claims for restitution and repayment of costs.
2. Applicable test. The applicant had to establish conscious and deliberate dishonesty by the successful party or someone for whom it was responsible, materiality, and new evidence not deployed before the original court. Conscious non-disclosure or an innocent mistake was insufficient. The court adopted the stringent materiality approach in Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328, while treating the approach in Hamilton v Al Fayed (No 4) [2001] EMLR 15 as substantially similar. Fraud allegations required cogent evidence, bearing in mind their inherent improbability.
3. Approach to new evidence. The court was to evaluate the new evidence and decide whether the original findings could stand in its light. It was not to retry the underlying claim or prefer different conclusions merely because it had heard part of the evidence afresh. Credibility could be assessed where relevant. A conspiracy between a party and a witness to procure perjury would, in principle, be sufficiently fundamental to satisfy materiality.
4. Application. Mr Brady had deleted WhatsApp messages, but the evidence did not show dishonest deletion intended to prevent disclosure. The expert evidence did not establish deliberate deletion of Telegram messages. There was no cogent proof that Mr Ferguson deleted or deliberately withheld emails, or that the witnesses gave knowingly false evidence. Mr Brady had breached confidence by forwarding privileged legal correspondence to Mr Soanes, but that breach was neither shown to be dishonest nor material. The first Article 89(5) notice would have been used as negotiating leverage and, if negotiations failed, served. The committee was independent, Mr Laycock was not bribed to resign, and the Loan Agreement was uncommercial but was not the price of false evidence. None of the new evidence satisfied either materiality test.

The judgment records that Esken’s 2018 Claim was determined by His Honour Judge Russen QC on 15 February 2019, with declarations made on 29 April 2019. Permission to appeal was refused on 6 June 2019 and an application to reopen that decision was dismissed on 13 November 2019. The present first-instance claim to set aside that judgment for fraud was dismissed.