William Andrew Tinkler v Esken Limited & Ors

The court struck out and dismissed the Claimant's unlawful means conspiracy ("Conspiracy Claim") as an abuse of process and on the basis of an earlier clear admission by the Claimant that pursuit of the Conspiracy Claim would be an abuse of process if his challenge to the Russen Judgment failed. The judge applied the principles in CPR Part 14 (withdrawal of admissions) and CPR Part 3.4 (strike out for abuse or no reasonable grounds), weighing the CPR Part 14.5 factors (grounds, new evidence, conduct, prejudice, stage, prospects and administration of justice). Having found no new evidence sufficient to justify withdrawal, and significant delay and prejudice to defendants, the court refused permission to withdraw the admission and, alternatively, struck out the Conspiracy Claim as a collateral attack on findings made in the Russen and Fraud judgments and/or as Henderson v Henderson abuse.

Background and parties: The Claimant, Mr William Andrew Tinkler, sued Esken Limited (formerly Stobart Group Limited) and three individuals for damages for unlawful means conspiracy following earlier litigation (the 2018 Claim) decided by HHJ Russen QC. The Claimant had also brought a separate Fraud Claim seeking to set aside the Russen Judgment; that Fraud Claim was finally dismissed at first instance and on appeal. The Conspiracy Claim had been stayed pending resolution of the Fraud Claim and the Claimant previously obtained permission to use documents disclosed in an employment tribunal claim for limited purposes.

Nature of the application: The first to fourth defendants applied to strike out the Conspiracy Claim and to be released from preservation undertakings. The Fourth Defendant later made a similar application. The applications were heard after the final determination of the Fraud Claim and the exhaustion of the Claimant's appeal rights.

Issues before the court: The court framed the issues as (i) whether the Claimant had made a binding admission that pursuit of the Conspiracy Claim would be an abuse of process if the Fraud Claim failed, (ii) whether permission should be granted to withdraw that admission under CPR Part 14.5, and (iii) if not, whether the Conspiracy Claim should be struck out under CPR Part 3.4 as an abuse of process or on the basis of Henderson v Henderson principles, including whether the Conspiracy Claim was a collateral attack on prior judgments.

Reasoning and legal analysis: The judge concluded the Claimant had made an unequivocal admission in his witness statements and by counsel that the Conspiracy Claim would be an abuse of process while the Russen Judgment remained binding. On the CPR Part 14.5 factors the judge found no new evidence that would justify withdrawal, poor conduct and delay by the Claimant in seeking withdrawal, significant prejudice to defendants if withdrawal were permitted, and that the stage of proceedings did not outweigh those considerations. The judge also analysed abuse principles including collateral attack, Henderson v Henderson abuse, the Aldi guidelines about putting related proceedings before the court, and the need for proportionality when contemplating strike out. He reviewed seven discrete issues advanced by the Claimant and concluded either that they were collateral attacks on, or should have been raised in, the earlier proceedings, or that the Claimant had no real prospect of success on them.

Disposition and consequential orders: The court refused permission to withdraw the admission and struck out the Conspiracy Claim in its entirety. Alternatively, the court struck out the Claim because it was an abuse of process or had no real prospect of success on the pleaded issues. The judge ordered that the defendants be released from the preservation undertakings and invited the parties to agree a form of order; the Claimant was ordered to pay costs of the claim.

The court dismissed the Conspiracy Claim and struck it out. The dismissal was principally because the Claimant had previously and unequivocally admitted that pursuit of the Conspiracy Claim would be an abuse of process if the Fraud Claim failed and the Russen Judgment remained binding; the court refused permission to withdraw that admission. Alternatively, the claim was struck out as an abuse of process and/or on the basis that it constituted a collateral attack or Henderson v Henderson abuse on matters which had been or should have been raised in earlier proceedings, and because the amended/contemplated conspiracy allegations had no real prospect of success in view of the earlier findings in the Russen and Fraud judgments.

The Conspiracy Claim followed earlier related litigation. The trial of the Fraud Claim (seeking to set aside the Russen Judgment) resulted in dismissal: Fraud Judgment [2022] EWHC 1375 (Ch), the consequential application and costs order [2022] EWHC 1802 (Ch). The Court of Appeal dismissed Mr Tinkler's appeal: [2023] EWCA Civ 655. The Supreme Court refused permission to appeal (application for permission dismissed by Lords Reed, Leggatt and Richards on 21 November 2023). Following exhaustion of appeals the defendants renewed applications to strike out the Conspiracy Claim, which were heard and determined by Leech J in this judgment [2024] EWHC 1490 (Ch).