Tinkler v Ferguson & Ors

Reference: [2020] EWHC 1467 (QB)

Court: High Court

Judge: Nicklin J

Date of judgment: 8 Jun 2020

Summary: Malicious Falsehood – Strike Out – Abuse of Process – Damage – Jameel abuse

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Appearances: Andrew Caldecott QC - Leading Counsel (Defendant)  Jacob Dean (Defendant) 

Instructing Solicitors: Herbert Smith Freehills (Defendants)

Facts

The Claimant, Mr William Tinkler, was a substantial shareholder in and an executive director of Stobart Group Limited (“Stobart”).  The five Defendants held various roles at Stobart.

A dispute arose within Stobart’s board over whether the First Defendant should remain as Chairman. He and the four other Defendants believed he should; the Claimant disagreed. Matters came to a head, and on 29 May 2018 Stobart issued an announcement concerning the Claimant (“the Announcement”) in the name of its “Ongoing Board”, which was defined to include the Defendants. On 8 June 2018, the Claimant issued proceedings in libel and malicious falsehood.

The following day, the Claimant wrote to Stobart’s shareholders and employees, criticising the Defendants’ actions and urging shareholders to vote against the First Defendant’s re-election as Chair. On 14 June 2018, Stobart terminated the Claimant’s employment on the grounds that he had attempted to destabilise the company. The next day, it commenced a claim against him in the Commercial Court (“the Stobart Action”); the Claimant counterclaimed.

 

Judgment in the latter proceedings (“the Stobart Judgment”), which had necessitated consideration of the Announcement, was handed down on 15 February 2019. The Claimant’s dismissal was upheld, and he was twice refused permission to appeal. His libel and malicious falsehood proceedings against the Defendants continued, however. Preliminary meaning issues were determined in a judgment given on 17 December 2018, which the claimant unsuccessfully appealed. On 14 June 2019, the Claimant secured permission to make limited amendments to his claim, ultimately leading, in September 2019, to the abandonment of the libel action.

On 3 January 2020, the Defendants applied for an order staying (alternatively, striking out) the remaining malicious falsehood action, on the grounds that it would involve the re-litigation of the Stobart Action or a collateral attack upon the Stobart Judgment, and thereby amount to an abuse of process. In the alternative, the Defendants contended that in failing to allege special damage, or advance a reasonably arguable or properly particularised case under s.3(1), Defamation Act 1952, the claim disclosed no reasonable grounds for being brought, and should be struck out on that basis. Further, or alternatively, they argued that the action should, in light of the Stobart Judgment and the Claimant’s inability to establish a substantial tort, be struck out as an abuse of process pursuant to the principle established in Dow Jones & Co Inc v Jameel [2005] QB 946. Finally, the Fourth Defendant advanced a further, alternative ground, seeking the dismissal of the action, or summary judgment against the Claimant, on the grounds that the Claimant had advanced no case of malice against him (or none that had any real prospect of success).

Nicklin J heard the Defendants’ application on 31 March and 1 April 2020.

Issue

Whether:

1.  the Claimant’s malicious falsehood claim would involve the re-litigation of the Stobart Action and/or a collateral attack on the Stobart Judgment, and thereby amount to an abuse of process;

2.  the pleaded claim on the publication of the Announcement disclosed a properly arguable case;

3.  the action should be struck out under the Jameel jurisdiction as disclosing no substantial tort;

4.  the Claimant had advanced a case of malice, with a real prospect of success, against the Fourth Defendant.

Held

1.  The Defendants’ application was granted on the first ground: the malicious falsehood action was struck out on the basis that its continued litigation would be an abuse of process. The first of the two Announcement meanings held, as a preliminary issue, to be available for that action was that the Claimant had “destabilised the board at a crucial time” for Stobart. Resolving whether the Claimant had in fact done so, and whether the Defendants, at the relevant time, held the opinion that he had done so, would entail relitigating a significant part of the Stobart Action; it would also, through the Claimant’s inviting the court to make findings of fact contrary to those in the Stobart Judgment, involve a collateral attack on that decision. The same went for several other issues in the proceedings. That the Stobart Action had been brought against the Claimant by the company, and the Claimant’s malicious falsehood action was against five individuals sued as directors, did not, as the Claimant contended, mean that the malicious falsehood claim was not duplicative, or not abusive: this was “a distinction without any substance”.

2.  Given the above finding, it was not strictly necessary for Nicklin J to consider the other bases on which the Defendants had sought the dismissal or stay of the Claimant’s action. However, the Judge did shortly set out his decision on the second ground. He held that the Claimant’s pleaded case on the likelihood of the Announcement having caused him pecuniary damage was flawed in several respects, including in disclosing no proper case on causation, and in claiming for reputational damage. It should therefore be struck out on the grounds that it did not disclose a properly arguable case.

3.  Finally, in respect of the Fourth Defendant’s challenge to the malice case against him, Nicklin J recorded that the case was “inadequate and speculative”, and appeared to have been advanced opportunistically, and for expediency.

Comment

Nicklin J’s judgment provides useful synopses of the principles governing the inherent power of the court to prevent misuse of its procedures; the recovery of damages in malicious falsehood; and the Jameel jurisdiction. It is also a cautionary reminder to potential litigants of the importance of ensuring, as far as possible, that issues between parties are addressed in one single set of proceedings. Given the overlapping issues in the Stobart Action and the malicious falsehood claim, Nicklin J’s explicit view was that the claimant could and should have brought the latter action as part of his counterclaim in the former, or that the two actions should have been tried together.