William Andrew Tinkler & Anor v Invesco Asset Management Limited & Ors

The claim for unlawful means conspiracy and dishonest assistance was struck out. The court held that the Particulars of Claim amounted to a collateral attack on a series of earlier judgments (notably the Russen Judgment, the Fraud Judgment and related rulings) and therefore constituted an abuse of process. The court also concluded, in the alternative, that the Claimants had repeatedly breached the CPL collateral-use restriction (CPR Part 31.22) by using documents disclosed in earlier proceedings for a different purpose without court permission or consent.

Key legal points: (1) a new action which is, in substance, a collateral attack on earlier judicial findings may be struck out as an abuse of process; (2) where disclosed documents from earlier proceedings are used for collateral purposes, the onus lies on the party using them to establish that one of the CPR Part 31.22 exceptions applies; (3) pleadings that depend on inferences from a conspiracy found to be inconsistent with prior factual findings may be incoherent and unsalvageable; and (4) where pleadings are defective the court will normally permit amendment unless the proposed amendment is stale, unsupported by a draft or unlikely to have a real prospect of success.

The claimants, Mr William Tinkler and Stobart Capital Limited, issued proceedings asserting unlawful means conspiracy and dishonest assistance arising from events surrounding Esken Ltd (formerly Stobart Group Ltd) in 2018. The Particulars of Claim pleaded that a combination of the company directors and a set of third parties (including the Active Defendants: Invesco Asset Management Ltd, Orbitus Trustees (Guernsey) Ltd and Stifel Nicolaus Europe Ltd) had pursued a 'Control Conspiracy' to remove Mr Tinkler as director, to influence voting at the 6 July 2018 annual general meeting and to cause the termination of a management agreement.

Nature of the applications: the three Active Defendants applied to strike out the Particulars of Claim (or for reverse summary judgment) on grounds of no reasonable prospect of success, abuse of process and, in the case of the documents used, breach of CPR Part 31.22. The Claimants had also sought a stay of the strike-out hearing pending a Takeover Panel investigation but that stay was dismissed in a separate ex tempore ruling.

Issues before the court:

• Whether the Present Claim was an abuse of process because it was a collateral attack on earlier judgments (including the Russen Judgment, the Fraud Judgment and the Conspiracy Judgment).
• Whether the Particulars of Claim disclosed a coherent conspiracy (combination, intention to injure, use of unlawful means and causation) with real prospects of success.
• Whether the Claimants had breached CPR Part 31.22 by using disclosed documents from earlier proceedings for collateral purposes and, if so, whether retrospective permission should be granted or whether striking out is appropriate.
• Whether any pleaded admissions made earlier barred the Present Claim.

Court's reasoning and conclusions: the judge analysed the pleaded combination and found the central allegation that the Four Directors combined to pursue an improper 'Control Conspiracy' to be a collateral attack on prior factual and legal findings made in the Russen Judgment and the Fraud Judgment. Because the allegations against the Active Defendants were parasitic on that central conspiracy allegation, striking out the combination rendered the Present Claim incoherent. The court further examined individual elements (the 29 May RNS, the Panel submissions, share transfers, voting and proxy issues) and found that each, if pursued, would require relitigation of matters already decided, or was inadequately pleaded, and therefore abusive. Independently, the court found multiple breaches by the Claimants of CPR Part 31.22 in using disclosed documents for collateral purposes without permission or consent; the Claimants had not discharged the burden of showing any exception applied and had not sought prospective permission. The court therefore struck out the claim as an abuse of process, and alternatively for failure to comply with CPR Part 31.22.

The Particulars of Claim are struck out. The court held that the Present Claim amounted to an abuse of process because it was, in substance, a collateral attack on a number of prior judicial decisions (notably the Russen Judgment and the Fraud Judgment) and that the pleaded combination and related allegations were therefore incoherent or would require relitigation of matters already decided. Alternatively, the court struck out the claim for multiple breaches of the collateral-use restriction in CPR Part 31.22 because the Claimants used documents disclosed in earlier proceedings for a collateral purpose without court permission or consent and failed to show any exception applied.