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

A claim against new defendants may still be an abusive collateral attack on findings made in earlier proceedings. The court must examine the substance of the issues, not merely whether the parties are identical. A claimant is not subject to a general duty to investigate every possible claim with reasonable diligence before earlier proceedings, and failure to follow case-management guidelines does not automatically require strike-out.

Where disclosed documents have been used in later, unrelated proceedings contrary to CPR Part 31.22, the party deploying them bears the burden of proving that an exception applies. Strike-out is available but is not automatic; the court must balance the relevant prejudice and public interests. A defective pleading should ordinarily be amendable, but amendment may be refused where no properly formulated case with a real prospect of success is advanced.

The claimants brought proceedings alleging unlawful means conspiracy and dishonest assistance against Invesco Asset Management Ltd, Frederick Bouverat, Orbitus Trustees (Guernsey) Ltd and Stifel Nicolaus Europe Ltd. They alleged that the defendants assisted directors of Esken Ltd in removing Mr Tinkler, securing the chairman’s re-election, influencing voting at the AGM and causing loss to Mr Tinkler and Stobart Capital Ltd.

The defendants applied under CPR Part 3.4 and for reverse summary judgment. They relied on abuse of process, lack of reasonable prospects, pre-action admissions and misuse of documents disclosed in earlier proceedings. The claimants also sought a stay pending a Takeover Panel investigation. The stay application had been dismissed in an earlier judgment. The central issues were whether the claim was a collateral attack on earlier judicial findings and whether documents had been used in breach of the collateral-use restriction.

1. Disposition. The court refused to strike out the claim on the basis of pre-action admissions. It struck out the Claim Form and Particulars of Claim as an abuse of process, alternatively for multiple breaches of CPR Part 31.22.
2. Collateral attack. A claim against parties who were not defendants to earlier proceedings may nevertheless be abusive if, in substance, it requires the court to reopen findings already made. The pleaded combination against the Four Directors attacked findings in the Russen Judgment and the Fraud Judgment concerning their purposes, conduct, good faith, Mr Tinkler’s removal and the validity of the chairman’s re-election. Once that central allegation was removed, the claims against the Active Defendants became parasitic and incoherent.
3. Elements of conspiracy. The court restated the requirements of unlawful means conspiracy: combination or understanding, intention to injure, unlawful means and causation. The unlawful conduct must be the means by which loss was inflicted, rather than merely incidental. The claim by Stobart Capital Ltd also lacked a real prospect of success because the earlier judgment held that the Management Agreement had been lawfully terminated.
4. Other allegations. Allegations concerning the RNS announcement, Panel submissions, share transfers, proxy votes and dishonest assistance either constituted collateral attacks on earlier findings, lacked adequate particulars or had no real prospect of success. The proposed alternative amendment alleging a separate conspiracy between the Active Defendants was refused because no draft pleading was offered, limitation had expired, and the proposed case had not been shown to have a real prospect of success.
5. Collateral use of documents. The party deploying documents in later proceedings must establish that an exception under CPR Part 31.22 applies. The court may grant retrospective permission, but repeated misuse, failure to seek permission and the risk of depriving defendants of a limitation defence justified strike-out in this case. Breach of the restriction does not automatically require strike-out; a balancing exercise is required.