Stobart Group Ltd & Ors v Elliott

This the hearing of two main applications being:

In addition to these applications, there is an application made by the Stobart Defendants in the 90033 proceedings and the Stobart Claimants in the 90133 proceedings for a General Civil Restraint Order against Mr Elliott. It has been agreed that this application be stood over to be heard following delivery of this judgment.

Mr Elliott issued three further applications shortly before this hearing being

The other matter before me was an application for directions in relation to an Inquiry concerning the losses if any recoverable by Mr Elliott under a cross undertaking given by the Stobart Claimants when applying for an interim injunction against Mr Elliott in the 90133 proceedings. I had ordered the Inquiry at an earlier hearing on 16 January 2013, because the Stobart Claimants had decided to discontinue their claim in the 90133 proceedings and in consequence the interim injunction that they had obtained in those proceedings was discharged. The Stobart claimants decided to discontinue the 90133 proceedings following the handing down of the Court of Appeal judgment in the 40076 proceedings, taking the view that there was sufficient protection for their interests from the Tetlow Order.  The relevant directions were given at the end of the hearing before me and do not require any further elaboration.

The background to the dispute between Mr Elliott and the Stobart parties has been rehearsed in a judgment given by me in October 2011 determining some contempt proceedings brought by the claimants in the 40076 proceedings for alleged breach by Mr Elliott of the final injunction against him contained in the Tetlow Order, in the judgment of Sharp J ([2012] EWHC 600 (QB)) determining Mr Elliott’s application to set aside the Tetlow Order (where the most detailed factual summary is to be found) and in the judgment of Maurice Kay LJ giving the judgment of the Court of Appeal ( [2012] EWCA Civ 1289) overturning Sharp J’s Order. What is set out in this section of this judgment is a summary sufficient to make the applications and my determination of them intelligible. If a more detailed summary is required then reference should be made to each of the judgments that I have mentioned.

Mr Elliott was an experienced helicopter pilot who was engaged to provide aviation services to WADI until that relationship came to an end in March 2007 in circumstances of great acrimony. Mr Elliott maintains that he was forced to resign because, he alleges, WADI were conducting unlawful flying operations by permitting aircraft owned by it to be chartered to other companies with which WADI was linked being primarily companies within the Stobart group. He maintains that for such arrangements to be lawful, an Air Operators Licence (“AOL”) is required from the CAA and (in relation to aircraft on the US Aircraft Register) a permit to similar effect issued by the Federal Aviation Authority (“FAA”). He maintains that an offence under the Air Navigation Order (“ANO”) was committed every time an aircraft belonging to WADI was chartered while WADI did not have such a licence. A significant number of chartered aircraft movements are alleged to have taken place, which enables Mr Elliott to maintain that a very large number of offences were committed. Many of these flights originated from Carlisle Airport, a licenced airfield owned and operated by a company within the Stobart Group. Mr Elliott maintains that a consequence of unlawful charter flights originating from Carlisle was that the holder of the licence for Carlisle Airport committed an offence every time an unlawful charter flight departed from or (possibly) arrived at Carlisle.

Mr Elliott reported the allegedly unlawful activities to the CAA. There was an investigation (carried out by the official to whom Mr Elliott wishes a witness summons to be issued) and ultimately the CAA decided not to prosecute. The letter informing the Stobart parties of this conclusion is dated 6^th February 2008 and was sent to Pannone, the solicitors then acting for them, by the Head of the Enforcement Department of the CAA. The basis of the decision was said to be a conclusion that “… there is insufficient evidence of a breach of the Air navigation legislation to provide a realistic prospect of conviction …”. The CAA wrote to Mr Elliott on the 26^th March 2008 in essentially similar terms. The reasoning leading to that conclusion is not set out in the letter.  Mr Elliott has never accepted that the aviation offences were not committed and has sought to advance that allegation in a number of different ways in various claims to various courts over a number of years.

Aside from the issue concerning the alleged aviation offences, there was a dispute between Mr Tinkler and Mr Elliott concerning some land in Cumbria. This dispute led to litigation in the Chancery Division at Manchester District Registry. That claim was in the end settled on terms set out in the schedule to a Tomlin Order that included an undertaking in the following terms:

"UNDERTAKING BY THE CLAIMANT TO W.A. DEVELOPMENTS INTERNATIONAL LIMITED"

[Mr. Elliott] provides the following Undertaking provided that he is not subject to any defamatory or slanderous statements coming to his attention from [Mr. Tinkler] or his companies. If [Mr. Elliott] does receive knowledge of such statements he will put into writing to [Mr. Tinkler] his concerns and ask for a retraction within 7 working days of such statements. If he does not receive such a retraction then [Mr. Elliott] is at liberty to defend himself as he sees fit in the circumstances.

I, PETER ELLIOT, on behalf of myself, my servants, agents or howsoever (to which all reference to "I", "myself" or like expressions in these undertakings refer), UNDERTAKE FROM THE DATE HEREOF:

A.

that I shall not, whether by myself or by procuring, counselling or encouraging others to do so, make, permit, repeat or cause to be repeated, any allegation whatsoever to any third party, whether directly or indirectly, in whatever form or medium howsoever, whether orally or in writing (and if in writing in any medium whatsoever, including any electronic form):

(a)

that W.A. Developments International Limited ("WADI"), any associated company or firm, or their respective directors, employees or agents or howsoever, have acted in respect of the operation of any or all aircraft (be they fixed wing or otherwise), in a manner which is in breach of any statutory or other regulatory requirements of either the United Kingdom or the United States of America, or any other country, and/ or which is otherwise contrary to the law of any country, save as I may be required to do so by the compulsion of law.

(b)

is otherwise defamatory of W.A. Developments International Limited, any associated company or firm, its directors, employees, servants or agents or howsoever;

(c)

with the intention of causing harm to the legitimate financial business interests of W.A. Developments International Limited, any associated company or firm, its directors, employees, servants or agents howsoever.

B.

To keep the facts of this dispute, this settlement and the terms of the settlement confidential and not to repeat the same to any third party without the express written permission of WADI and signed by a director save that I shall be at liberty, in answer to a specific question concerning this dispute, to respond that it has been settled amicably between [Mr. Elliott] and [Mr. Tinkler].

C.

To repeat these undertakings to a court of competent jurisdiction if required by WADI to do so. These undertakings are given in full and final settlement of any previous allegations I made or may have made of a like nature to those paragraphs A (a), (b) and (c) above."

This settlement did not resolve the differences between the parties. Mr Elliott commenced defamation proceedings against Mr Tinkler in the Newcastle District Registry. Mr Elliott considered that he was entitled to commence the Newcastle proceedings because the proviso to the undertaking set out above had, he alleges, taken effect. Ultimately those proceedings were struck out by an order made following a judgment delivered by District Judge Atherton on 21^st April 2009. It is relevant to note that the District Judge struck out this claim as an abuse of process because it contained a series of allegations that were described by the District Judge as being wholly irrelevant to the defamation actually sued upon.  The extraneous allegations included allegations that Mr Tinkler undertook multiple criminal aviation activities and ran an illegal airline; that he was involved in a tax evasion scheme, and that he had made a deceitful planning application. The District Judge considered this claim to be an abuse of process because the allegations made were immaterial to the defamation claim ostensibly being advanced and Mr Elliott had sent the pleadings to employees and important customers of the Stobart group and to members of Carlisle City Council. The District Judge concluded that the proceedings had not been brought by Mr Elliott in order to vindicate a right but to cause Mr Tinkler expense, harassment and commercial prejudice and thus they were struck out in accordance with relevant Court of Appeal authority.

Mr Tinkler and WADI commenced the 40076 proceedings shortly after Mr Elliott had commenced the Newcastle proceedings. Those proceedings were bitterly contested and had some unfortunate aspects that regrettably have contributed significantly to the continuing dispute. The early history of this dispute is set out in Paragraphs 16-21 of Sharp J’s judgment and I need not repeat it here. It is worth noting however, as did Sharp J, that the claimants in those proceedings sought interim and final injunctions against Mr Elliott that sought to restrict his freedom of expression. The interim injunction was applied for initially without notice. At no stage prior to the hearing in October 2011 of an application to commit Mr Elliott for an alleged breach of the Tetlow Order was s.12 of the Human Rights Act 1998 drawn to the attention of any of the judges from whom the claimants in those proceedings sought interim or final orders. None of this is the responsibility of Mr Hollander QC, who was not instructed prior to the hearing of the appeal from the decision of Sharp J. The view expressed by Sharp J at Paragraph 23 of her judgment was that this failure alone would have justified setting aside the interim injunction first obtained following an application by Mr Tinkler and WADI made without notice to Mr Elliott. The reference to me in that Paragraph should be to October 2011 rather than 2010, as is apparent from Paragraph 52 of Sharp J’s Judgment.

There were other omissions. The judge granting the without notice injunction (HH Judge Hegarty QC sitting as a Judge of the High Court) was not told about an email sent by Mr Elliott to Mr Tinkler on 2^nd November 2007. This email was important because it was the alleged failure by Mr Tinkler to respond to it that Mr Elliott relied on as entitling him to proceed as contemplated by the proviso to the undertaking. That email features in the application before me and is to following effect:

"Andrew

It has come to my attention that you have slandered me and also made defamatory comments about me to now several parties.

I offer you seven days to wholly retract and apologise to me for the following false statements that you have made to the above mentioned parties:

1 That I flew an Augusta helicopter for you unlawfully.

2 That I am responsible for the criminal aviation activities that you are under investigation for through poor advice from myself

3 That I was sacked from my position with WADI.
That I did not on numerous occasions advise you of your criminality and urged you to cease it

That I was not acting in the capacity as Aviation Director for WADI.

All of the above statements you have made to several parties are wholly false. I offer you seven days to unreservedly retract these false statements and Undertake to me that they will not be repeated."

The without notice application appears to have been made without much of the material relied on being before the court in written form and a direction was given that a witness statement was to be served and filed that set out the information given to Judge Hegarty at the hearing. The witness statement of Mr Tinkler dated the 24^th November 2008 is the statement filed in compliance with that direction. The omission concerning the email was not corrected.  On the contrary, Mr Tinkler stated that

“ … Mr Elliott may allege that he has been the subject of defamatory statements and therefore he is entitled by the terms of his promise to make any allegations that he chooses. Mr Elliott has not particularised the defamatory statements about which he complains. He has not as far as I know, put his concerns in writing and asked for a retraction …”.

Sharp J criticised Mr Tinkler for failing to disclose the 2^nd November email in that witness statement and also for misrepresenting the effect of a letter from Mr Elliott to Mr Tinkler to which he referred in the statement but which he did not exhibit.

The interim injunction made in the 40076 proceedings was continued and widened, and ultimately an application was made to commit Mr Elliott to prison for contempt in breaching the injunction that came before HH Judge Main QC sitting as a Judge of the High Court. Judge Main found the allegations of contempt proved and sentenced Mr Elliott to a term of 3 months imprisonment. It is this result that Mr Elliott expresses an abiding sense of injustice about, results in emotional outbursts by him whenever it is mentioned in court and, he says, has led to periodic mental incapacity difficulties and to suicide attempts by him ever since. There is no evidence before me that enables me to reach any even provisional conclusions about these last two points, which I record however as part of the essential narrative.

The 40076 proceedings were listed for trial before Judge Tetlow on 15 March 2010. This post-dated Mr Elliott’s committal to, and release from, prison.  Mr Elliott did not appear at the trial and was not represented. Mr Elliott had sought an adjournment. The email or letter by which he sought the adjournment is not now available. Mr Elliott maintains that he was too unwell to attend the trial because of an unsuccessful attempt to commit suicide a few days earlier. Whether the Judge had been informed of those precise circumstances is not clear. In any event the Judge decided to proceed in the absence of Mr Elliott. He was invited to dismiss Mr Elliott’s counterclaim, which he did, and to grant a final injunction and a General Civil Restraint Order. As noted already, the attention of the Judge was not drawn to s.12 of the Human Rights Act by leading counsel appearing for Mr Tinkler and WADI. A GCRO was granted by the Judge, as was the Tetlow Order which included a final injunction in these terms:

“The defendant shall not by himself or by counseling, procuring or encouraging others to do so, repeat or cause to be repeated any allegations whatsoever to any third party, whether directly or indirectly, in whatever form or medium whatsoever:

3.1.

That W.A. Developments International Limited ("WADI"), any associated company or firm, or their respective directors, employees or agents or howsoever, have acted in respect of the operation of any or all aircraft (be they fixed wing or otherwise), in a manner which is in breach of any statutory or other regulatory requirements of either the United Kingdom or the United States of America, or any other country, and / or which is otherwise contrary to the law of any country, save as required to do so by compulsion of law.

3.2.

That is otherwise defamatory of W.A. Developments International Limited, any associated company or firm, its directors, employees servants or agents howsoever;

3.3.

With the intention of causing harm to the legitimate financial business interests of W.A Developments International Limited, any associated company or film, its directors, employees, servants or agents or howsoever.”

I can set out the remaining history of the 40076 proceedings shortly. Applications by Mr Elliott to appeal out of time from the Orders made by Judge Main and from the making of the Tetlow Order were rejected both on grounds of delay and because of the availability of an alternative remedy namely to apply to have the Tetlow Order set aside pursuant to CPR 39.3.

An application to commit Mr Elliot for breach of the Tetlow Order came before me on 20 October 2011, when I found 4 out of 19 allegations proved and sentenced Mr Elliot to a period of three months imprisonment suspended for 2 years.

An application was made to me by Mr Elliott under the terms of the GCRO to commence an application under CPR 39.3. I granted that application. The CPR 39.3 application came before Sharp J who granted the application. The Court of Appeal then overturned that order on appeal by Mr Tinkler and WADI. The appeal succeeded on the issue of whether the application under CPR 39.3 had been brought promptly.  It is worth noting however, as Maurice Kay LJ records in Paragraph 26 of his judgment, that Sharp J’s finding that Mr Elliott had a good reason for not attending the trial before Judge Tetlow was not challenged in the Court of Appeal, and it was accepted by Mr Tinkler and WADI that there were triable issues between Mr Elliot and them in the 40076 proceedings “ … in respect of which Mr Elliott had a reasonable prospect of success.” Finally, an application was made by Mr Elliott to set aside the Tetlow Order on the ground that it was obtained by fraud. That application came before me and was dismissed on 7 February 2013.

Although the application to strike out Mr Elliott’s counterclaim in the 90133 proceedings predates the commencement by Mr Elliott of the 90033 proceedings, Mr Hollander agreed to the request from Mr Elliott made at the outset of the hearing before me that the application by Mr Elliott for permission to bring contempt proceedings be dealt with first. I acceded to that request and I have followed this order in this judgment.

As noted in earlier judgments, I became concerned at one stage as to whether Mr Elliott had sufficient mental capacity to conduct his defence of the contempt proceedings that I heard ultimately in October 2011. This has caused me to ask myself on each occasion when there is a hearing at which Mr Elliott appears in person whether there is any reason why I ought to be concerned about capacity. At this hearing I was able to observe Mr Elliott throughout and I record that aside from a limited number of occasions when the continuation of the hearing became difficult for him, I consider that Mr Elliott had capacity to conduct the hearing. Where matters became too much for him, I was able to adjust for that by breaks as and when necessary. 

The legal Framework

Practice Direction 81 – Applications and Proceedings In Relation To Contempt of Court (“PD81”) augments CPR Part 81. The part of PD81 relevant to Mr Elliott’s application is Paragraph 5. In so far as is material it is to the following effect:

“5.2

Where the permission of the court is sought under rule 81.18(1)(a) or 81.18(3)(a) so that rule 81.14 is applied by rule 81.18(2) or 81.18(4), the affidavit evidence in support of the application must –

(1)

identify the statement said to be false;

(2)

explain –

(a)

why it is false; and

(b)

why the maker knew the statement to be false at the time it was made; and

(3)

explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

…

5.7

The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1.

…

9 In all cases the Convention rights of those involved should particularly be borne in mind. It should be noted that the standard of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt.”

The main focus of Mr Elliott’s attention is on allegedly false assertions contained in witness statements filed by the Stobart Defendants.  Each relevant statement contains a statement of truth. In relation to such statements the CPR Part 32.14 provides:

“(1)

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

(Part 22 makes provision for a statement of truth)

(Section 6 of Part 81 contains provisions in relation to committal for making a false statement of truth.)”

The approach to be adopted on applications for permission has been considered in a number of authorities. The principles that emerge are the following:

The Alleged Contempts

It will be necessary to examine each allegation in turn. My starting point has been to ask in relation to each allegation whether a sufficiently strong prima facie case has been established that the statement relied on was untrue, known to be untrue or was made recklessly not caring whether it was true or false and was known to be likely to interfere with the course of justice. This last fact or is likely to be satisfied inferentially if the other two factors are established because the statements concerned are included in witness statements served in legal proceedings. In some cases it is readily apparent that permission ought not to be granted on grounds of proportionality. Where that is so, I have said so. In other cases where I have concluded that a sufficiently strong prima facie case has been demonstrated, I have left until the end a consideration of the proportionality and pubic interest issues taking the view that those issues should be considered together once all those allegations where a sufficiently strong prima facie case has been made out have been identified.

Before turning to each of the allegations in turn I should draw attention to the fact that on 30 October 2009, Mr Elliott commenced proceedings for contempt of court in which on the face of the Claim Form he referred to “…in excess of 40 acts of contempt of court …”. In fact as far as I can see the contempt application (which was contained in Paragraph 1 of the Claim Form) was limited to an allegation relating to disclosure in the 40076 proceedings. The application for permission came before Judge Tetlow on 30^th October 2009, when permission was refused and Paragraph 1 of the Claim Form was struck out. There has been no appeal from that decision. If and to the extent that the application now before me replicates the allegations for which Judge Tetlow refused permission, in my judgment permission must necessarily be refused by me unless it can be shown that there is new material now available that was not before Judge Tetlow and which was not available to, and could not reasonably have been obtained by, Mr Elliott at that time.

The final general point that I should make at this stage concerns the credibility of the evidence of Mr Elliott as a witness. It was submitted by the Stobart Defendants that I should not accept the uncorroborated evidence of Mr Elliott because on the one occasion when he has given oral evidence (before MacDuff J) he was found to be an untruthful witness – see Paragraph 23 of Mr Hollander’s written opening submissions. I do not accept that I should reject out of hand allegations made by Mr Elliott simply because he has been disbelieved on a previous occasion. Rather it seems to me that I must necessarily ask myself in relation to each allegation whether Mr Elliott has satisfied me that he has a strong prima facie case that the relevant Stobart Defendant has given false evidence knowing it to be false or being reckless not caring whether it was true or false. A factor in assessing whether that is so will be (if it be the case) that the only evidence in support of the allegation is the uncorroborated evidence of Mr Elliott. In such a case I am bound to remind myself that it is probable (although not certain) that the Judge determining any contempt proceedings I give permission to Mr Elliott to bring will direct himself to be very cautious about accepting Mr Elliott’s evidence save where what he says is admitted, against his interest or corroborated by documentation the authenticity of which is admitted or testimony from a witness whose credibility is admitted or has been found credible by that judge. 

Allegations 1 and 2

Mr Elliott’s affidavit in support of the application (Para. 18, “Contempt 1’ and “Contempt 2”) contains bare assertion.  Mr Elliott has attempted to incorporate by reference into his affidavit other material filed on earlier occasions in relation to different applications to make good various assertions including this one. The evidence on which Mr Elliott relies in support of these allegations consists of a spreadsheet prepared by him which appears to be based on material obtained from a variety of different sources and which involve a number of assumptions, none of which are supported by any evidence other than assertion by Mr Elliott.

I am not satisfied that this evidence demonstrates a sufficiently strong prima facie case that the statements made were false to justify the grant of permission. Even if this is wrong, in any event I am satisfied that Mr Elliott has not demonstrated any basis on which a court could be expected to conclude beyond reasonable doubt that Mr Tinkler made the statements about which Mr Elliott complains knowing them to be false. Mr Tinkler has filed evidence in answer to these allegations in which he has said that he honestly believed what was said to be a proper estimate of his personal wealth. In order to overcome that claim, Mr Elliott would have to show that on the material known to Mr Tinkler, no honest man could honestly have held that opinion. I do not see any prospect of Mr Elliott overcoming that hurdle to the criminal standard by reference to the material that he relies on. Had I been satisfied that a strong prima facie case had been demonstrated on the matters I have so far considered, I would have concluded that the requirement to demonstrate knowledge that what was said was likely to interfere with the course of justice was made out by inference given the nature of the evidence and the purpose for which it was deployed. However, given my conclusions on the other points this issue does not arise.

Even if that is wrong, to permit such an allegation to continue would be disproportionate and on balance would not further the public interest. Mr Tinkler might simply choose to sit back and put Mr Elliott to proof if permission was to be granted. However that is unlikely. Thus the effect of giving permission will probably be to put Mr Tinkler to the potentially enormous cost of establishing his actual net worth as at the date of the witness statement. This may well involve commissioning substantial professional assistance given that this issue turns in part at least on the value to be attributed to shares held by Mr Tinkler – an issue about which experienced professionals can differ very significantly.  Different valuation methodologies are available including but not limited to multiples of maintainable earnings, discounted cash flow and net asset valuations. Which method is appropriate can give rise to real difficulty and to differences of view between qualified experts, as can the effect of applying each method to particular facts, which may in turn be heavily contested. The cost of obtaining evidence on such issues will be substantial.  There is no realistic prospect of this cost or even a portion of it being recovered from Mr Elliott if the respondents are successful. Mr Elliott maintains that he is a man of wealth, yet he continues to fail to meet costs orders as and when they are made and continues to claim that he is unable to afford legal representation.  If this allegation is to be tried properly, and if Mr Tinkler decides to advance a positive case it is likely that significant amounts of case management and hearing time will be needed and in any event substantial legal costs will be incurred.

In my judgment, on balance, the public interest does not require that this allegation be investigated as a contempt of court. Whilst I bear in mind that to obtain an injunction without notice on the basis of false evidence would be a very serious contempt and that the public interest in punishing anyone demonstrated to the criminal standard of proof to have embarked on such a course is a strong one, this factor is outweighed in relation to the allegations I am now considering by the paucity of evidence in support of the central allegations and by the cost to the public of providing court facilities to case manage and then hear a contempt application based on that allegation.

Essentially the same evidence and the same considerations arise in relation to Allegations 1 and 2. Permission is refused in relation to each for the reasons set out above.

Allegation 3

It is common ground between the parties that Mr Tinkler was wrong when he said he had been interviewed under caution. The real issue is whether there is a sufficiently strong prima facie case that Mr Tinkler deliberately gave false evidence on this point. In his witness statement in answer, Mr Tinkler says that at the time he had understood that he was being interviewed under caution but it became apparent only later and following enquiries carried out by Pannone that the interview had not been an interview under caution. He then adds “ I did honestly believe that this was the case and there was no intention on my part to mislead the court …”. The difficulty about that is that the witness statement that Mr Elliott is concerned about was dated 24^th November 2008. The relevant interview had taken place on the 9 July 2007. In a letter of the 12 July 2007 to Mr Tinkler, Mr Crawley said in terms that the interview had not been under caution (second paragraph on page 1) and indicated that in due course Mr Tinkler would be offered such an interview (antepenultimate paragraph on the final page of the letter) though in fact no such interview ever took place.

It would be wrong of me to trespass too much on an assessment of the merits of this allegation at this stage. It is relevant to note however that it is possible to make good a case even to the criminal standard by reference to inferences. To my mind the fact that the letter from the CAA official makes clear that the only interview of Mr Tinkler by that official was not under caution, that the letter was addressed to Mr Tinkler personally and that it was sent to Mr Tinkler slightly more than a year prior to the date of the statement that Mr Elliott is challenging inferentially supports the contention that Mr Tinkler knew that he had not been interviewed under caution at the time he signed the witness statement. I should not be taken as suggesting that there is no answer to this point. Rather at this stage I am saying only that a sufficiently strong prima facie case has been demonstrated to pass the initial hurdle to permission being granted. It is to be inferred (and Mr Tinkler does not deny) that he knew that if the statement was false a false statement then it was likely to interfere with the course of justice. The facts stated were clearly material to the question whether an interim injunction should be granted and if so on what terms. The purpose of including it was to support the central claim that the allegation that criminal breaches of the ANO had occurred was without substance. It is this that supports the inference that if the statement was false then Mr Tinkler would have known that it was likely to interfere with the course of justice to the extent of it providing illegitimate support for his claim to an Injunction. 

Allegation 4

In my judgment, Mr Elliott has taken the part of this sentence on which he relies out of context. The key point is that Mr Tinkler was saying that he regarded the allegations as without substance.  This was an expression of subjective opinion. Thus the real question to be answered is whether Mr Elliott has demonstrated a sufficiently strong prima facie case that an honest man in the position of Mr Tinkler could not have honestly held such an opinion. In my judgment he has for the following reasons.

The substance of Mr Tinkler’s evidence in answer is that (a) he has consistently denied wrong doing; (b) the CAA investigated Mr Elliott’s allegations and concluded that no further action should be taken but (c) Mr Elliott continues to assert the truth of the allegations. In my judgment the reliance by Mr Tinkler on the decision of the CAA not to prosecute is not of itself either a sufficient or necessary basis for an assertion that the breaches of the Air Navigation Order alleged did not in fact occur or as a foundation for the claimed belief. As I have said already, the CAA concluded only that in its view there was insufficient evidence to provide a realistic prospect of conviction. In my judgment whether breaches had occurred (and were in truth known to Mr Tinkler to have occurred) has to be considered in the light of the whole of the evidence relied on by Mr Elliott.

Mr Elliott alleges and it was not disputed before me that (a) WADI operated a light twin jet and a helicopter, both of which were registered on the US Register, (b) that as a matter of UK Air Law, the UK owner of a foreign registered aircraft is not permitted to use it for revenue earning operations without an AOL, (c) WADI did not have such a licence and thus (d) every time WADI caused or permitted either the jet or the helicopter to be chartered to a third party a breach of the relevant provisions of the Air Navigation Order occurred. Mr Elliott maintains that Mr Tinkler and other senior WADI managers very well knew all this.

The evidence that Mr Elliott relies on is

In my judgment this evidence establishes a sufficiently strong prima facie case that the alleged aviation offences had been committed by WADI in the period covered by the invoices – that is between not later than 23 September 2005 and not later than 13 March 2007. Although the letter from Mr Crawley suggests that Mr Tinkler was operating under a genuine misapprehension, that is not consistent with the contents of the report from Robert Muckle that was sent to Mr Tinkler direct in December 2005. Whilst 4 of the invoices predate that letter, the remaining 20 postdate it. This is not explained in the evidence filed by Mr Tinkler in answer to the application.  Although Mr Elliott did not formally cite the ANO to me, the Stobart Defendants did not suggest that to charter an aircraft operated by them in the UK that was registered on the US Register without an AOL was not an offence under the ANO. Thus I conclude that a sufficiently strong prima facie case has been out.

Given that I am satisfied that a strong prima facie case has been made out that the relevant statement was false and was known to be false, I can readily infer that a strong prima facie case has been made out that Mr Tinkler knew that the false statement was likely to interfere with the course of justice, given that the statement was made for the purpose of maintaining his claim to the interim injunction.

The proportionality issues that I noted in relation to the allegation concerning Mr Tinkler’s personal wealth do not arise in relation to this allegation. I consider the public interest and proportionality issues that arise generally later in this judgment.

There is one point relevant to proportionality I should mention at this stage however. There is evidence that sums received for use of the aircraft were invoiced back to the charterers following the commencement of the CAA investigation. Although that does not provide an answer to the allegation that offences were committed when the aircraft were chartered originally, it does reverse and therefore eliminate any financial gain allegedly obtained by breach of the ANO in the manner alleged by Mr Elliott, assuming the sums paid to WADI were in fact repaid to the third parties concerned, as I assume was the case for present purposes.  It might be suggested therefore that in the result the offences, if they are ultimately shown to have occurred at all, were technical only and thus that the allegation I am now concerned with is of such peripheral importance that permission ought to be refused on public interest and/or proportionality grounds. I do not accept that to be a proper approach.

The point I am now considering is immaterial because I am not concerned with the substance of the allegation as such, but with the alleged falsity of the statement relied on.  As I have mentioned, the statement which forms the subject of this allegation is contained in a witness statement that confirms information supplied to the judge when applying without notice for an injunction that restricted Mr Elliott’s freedom of expression. That injunction was sought on the basis that his allegations were groundless. An assertion that the allegations were considered groundless could have been included only for the purpose of bolstering the claim to be entitled to the injunction sought and is materially different from an assertion that the allegations were true but involved technical breaches of which Mr Tinkler had no knowledge at the time. On any view an assertion that the allegations were considered to be groundless would be a significant over statement of the true position assuming Mr Elliott makes good on the prima facie case I have concluded that he has established. Thus I do not accept that to permit this allegation to proceed would of itself be disproportionate or contrary to the public interest simply because the allegation even if true would be technical only.

Although Mr Elliott maintained that the effect of operating the aircraft unlawfully would be enable the insurers of the aircraft to avoid the policies relating to the use of the aircraft, there is no evidence before me that such was so. If that point had substance, the fact that no harm occurred while the aircraft were being operated allegedly unlawfully, does not answer the point, particularly since the rendering of credit notes after the event is unlikely to correct the insurance position if it was as alleged by Mr Elliott.  As I have said however, there is no evidence before me concerning the insurance position and the insurance point was not I think included even as an assertion in the evidence in support of the application, so that it would not be appropriate to draw inferences from the fact that the point has not been addressed by Mr Tinkler in his evidence in response. Thus I leave this point out of account in considering proportionality and the public interest issues in relation to this allegation.

Allegation 8

This allegation refers back to the points noted by Sharp J as I have noted in Paragraphs 11-12 above. Mr Tinkler has answered this allegation in Paragraphs 24 – 27 of his witness statement dated 5 February 2013. In summary he says that the email had been sent over a year prior to the witness statement being prepared although he does not allege that he had forgotten about it at the time when he signed the witness statement. Mr Tinkler says that he was not aware of the relevance of the email to the Tomlin Order. The difficulty about that is that from the context, it is prima facie apparent that the person responsible for drafting the witness statement had asked about this issue in the context of the Tomlin Order and specifically in relation to the proviso to the undertaking given by Mr Elliott. Since Mr Tinkler does not say in his explanatory witness statement that he had forgotten about the email, the point made by Mr Elliott has not been answered.

For these reasons I am satisfied that Mr Elliott has demonstrated a sufficiently strong prima facie case that the statement he complains of was false and was made knowing it to be false or recklessly not caring whether it was true or false and was likely to interfere with the course of justice. As I have said however, this is the start of the determination of an application for permission not the end of it. More significantly for present purposes, Mr Elliott pleaded the fact that the email had been sent in his Defence in the 40076 proceedings and the fact that the email had been overlooked was admitted by leading counsel for the Stobart Defendants (not, as I have said, Mr Hollander) at a hearing before MacDuff J on 15^th January 2009 and offered to provide a corrective witness statement. Oddly however, no such corrective witness statement was ever filed. Mr Tinkler maintains that it was “overlooked”.

The public interest lies very strongly in ensuring that those who apply without notice for injunctive relief are punctilious in ensuring that their obligations to the court are complied with. This factor together with the general public interest in ensuring that those who sign statements of truth are aware of the consequences that follow should it be established that the statement concerned contains a false statement would suggest that permission ought to be granted. However that has to be balanced against the fact that the failure was acknowledged a little over 3 weeks later. However, by then the damage had been done. On balance therefore, the public interest I have identified outweighs the point made concerning the acknowledgement of the failure and its timing.  There are no other allegation specific proportionality issues that arise as they do in relation to the net worth allegation. I leave over until later the impact of general proportionality and public interest issues on this allegation.

Allegation 9

Allegation 10

 Allegations 11 and 14

Allegation 14 is also essentially a generalised response to a generalised allegation. Contempt proceedings ought not to be permitted in relation to it for essentially similar reasons to those given in relation to Allegation 11.

Allegation 12

Mr Elliott misunderstands what Mr Howarth has said. If Paragraph 31 of Mr Howarth’s statement is read in full it is clear that sub-paragraph (a) is simply a summary of what Mr Elliott alleges. Mr Howarth then says “I have spoken Mr Stobart and Mr Tinkler and they have told me (and I believe from my own knowledge of such matters) that these allegations are untrue). If this allegation is to succeed, Mr Elliott would have to show that the conversation alleged by Mr Howarth with Mr Tinkler did not take place. There is no evidence adduced by Mr Elliott to that effect.

In the alternative Mr Elliott would have to demonstrate that Mr Howarth’s statement of belief based on his own knowledge at the time was false. There is no evidence that establishes a sufficiently strong prima facie case that Mr Howarth did not have the belief he claims at the time when he made his statement.  The documentation that Mr Elliott relies on is that I have summarised above in relation to Allegation 4. That material establishes a strong prima facie case that aviation offences were committed. It does not establish that Mr Tinkler admitted that such was the case at any stage. No other material relied on by Mr Elliott has been shown by him to constitute an admission. Mr Elliott has failed to demonstrate a sufficiently strong prima facie case that the statement complained of is false.

Allegation 13

It is I think clear that Sharp J had concluded in Paragraph 26 of her judgment that Mr Tinkler had misrepresented the effect of a document that he had not exhibited. Mr Howarth accepts that to be so in Paragraph 19 of his statement of 18 February 2013.. Sharp J’s conclusion on this issue was not challenged before the Court of Appeal or commented on adversely in the judgment of Maurice Kay LJ. Mr Howarth maintains in Paragraph 11 of his witness statement of 18^th March 2013 that he did not recall the particular paragraphs of Sharp J’s judgment when making his statement. The proximity between the date of the judgment (15^th March 2012) and the date of the statement to which this Allegation relates (13 June 2012) does not make this self evidently correct. It does not justify simply rejecting the allegation out of hand without at least requiring it to be tested by cross examination.

Mr Howarth maintains that an explanation was offered to Sharp J to the effect that the matter to which she refers was an oversight that should have been but was not corrected. That is not the point however.  In my judgment the material available establishes a sufficiently strong prima facie case that Mr Howarth’s statement was false in the sense that he could not honestly hold the opinion claimed, and was known to him to be false at the date he signed the statement as was the fact that if it was false the misstatement was likely to interfere with the course of justice. There is nothing in the surrounding circumstances of this allegation that makes contempt proceedings in relation to it inherently disproportionate as is the case for example with the allegation concerning Mr Tinkler’s personal wealth. I leave over further consideration of the proportionality and public interest issues until later in this judgment.

Allegation 16

In my judgment Mr Elliott has not established a sufficiently strong prima facie case to justify me granting permission to commence contempt proceedings in relation to this allegation. The option to purchase would appear to have been fully disclosed to shareholders – see the opening paragraph of the letter to shareholders dated 12 May 2009. The exercise of the option was one that was recommended to shareholders by the Board on the basis of an independent valuation report from Drivers Jones that had been prepared for the company – see page 6 of the letter to shareholders dated 12 May 2009. The Drivers Jonas report supported the acquisition at the value recommended to shareholders. Mr Stobart and Mr Tinkler undertook not to vote on the recommendation and also undertook to use reasonable endeavours to ensure that their associates would not vote on the resolution either.

Mr Elliott alleges that the Drivers Jonas report was prepared on a number of false assumptions and using an inappropriate valuation method, which in combination had the effect of grossly inflating the reported value of the airport, which he maintains did not exceed what had been paid for it originally. These allegedly invalid assumptions include assumptions as to the length of the leasehold interest, and as to the profitability of the business operated from what are described in the report as the “operational land and buildings” which it is alleged was the basis on which the value of that part of the site was arrived at. Mr Elliott alleges that this element of the valuation could be justified only on the basis that the business being operated there was profitable when it was not. Mr Elliott also maintains that Drivers Jonas wrongly or inappropriately adopted the depreciated replacement cost basis of valuation.

The difficulty about all this is that in the end it is assertion. Mr Elliott is not a chartered surveyor. He has not produced any evidence from a valuer that would support any of the points that he makes. No primary evidence that supports the allegations he makes has been produced either. Mr Elliott seeks to assert that a very serious fraud has been committed by reference to a sale at a value that was supported by a report from an apparently competent and experienced valuer and in circumstances where it would appear that very full disclosure took place to shareholders prior to the transaction and where the transaction was approved by an overwhelming majority of the shareholders who voted, who excluded the Stobart defendants and their associates.  In the end the substance of this allegation depends upon an assertion that Jonas Drivers was wrong and Mr Elliott is right. That is not on any view a proper basis for commencing contempt proceedings, given the issues where I have to be satisfied that a strong prima facie case has been made out.

In any event, like the allegation concerning Mr Tinkler’s personal wealth, this is an allegation that it would not be in the public interest for me to permit to continue. As I have said, the evidence in support of the allegation does not amount to more than assertion. If the Stobart Defendants sought to contest the allegation by advancing a positive case it is likely that they would incur substantial cost (because extensive expert evidence would be required) when there is no realistic prospect of the Stobart Defendants recovering the costs of defending themselves even if they succeed. The court and judicial resource commitment would be substantial. A hearing of the allegation would be likely to take days rather than hours and it is likely that significant case management would be required particularly in relation to the management of expert evidence. The balance that must be struck between the public interest in being seen to penalise false statements where such statements have been advanced and the cost and inconvenience of attempting to resolve an issue of this kind in quasi-criminal satellite litigation, in my judgment comes down very clearly in favour of refusing permission.

Allegations 19, 28, 39, 40 and 48

Allegation 19 concerns a statement in Paragraph 36 of Mr Howarth’s statement of 13^th June 2012 in which Mr Howarth says that “… as a consequence of the previous outrageous and incorrect allegations made by Mr Elliott to the CAA that WADI was conducting its flying operations unlawfully, a long expensive and detailed investigation was undertaken by the CAA into the WADI operation”. Mr Elliott alleges that the statement that his allegations were “…outrageous and incorrect …” was false and was known to Mr Howarth to be false at the date of his witness statement.

I am satisfied that Mr Elliott has demonstrated a sufficiently strong prima facie case that the assertion that his allegations were false and known to Mr Howarth to be false to pass the threshold test for the grant of permission by reference to the material relied on by Mr Elliott that is summarised above in relation to Allegation 4. Mr Howarth’s response at Paragraphs 35-38 of his statement of 18^th February 2013 does not address this material satisfactorily, or in most cases, at all.  I leave to the end the issues concerning proportionality and the public interest to a later stage in this judgment.

Allegation 28 concerns an assertion by Mr Tinkler in a statement dated 5 February 2013 that Mr Elliott’s allegations of aviation criminality were wholly unfounded. My conclusions in relation to this allegation are the same as those I have expressed in relation to Allegation 4 and for the same reasons. I am satisfied that Mr Elliott has established a sufficiently strong prima facie case that the statement is false and was made knowing it to be false. I return to the issues concerning public interest and proportionality after I have considered each of the remaining allegations.

Allegations 39 and 40 concern an assertion in Mr Tinkler’s witness statement of 23 January 2013 that he understood that certain inter group transactions were permitted on the basis of advice from Mr Elliott to that effect and that as soon as it became apparent that they were not he reversed them. Mr Elliot’s point is that the objectionable charters were to third party organisations and that the assertion that they were reversed as soon Mr Tinkler became aware that they were not permitted is false by reason of the knowledge that Mr Tinkler acquired from the letter and paper sent to him from Robert Muckle. I am satisfied that a sufficiently strong prima facie case has been demonstrated in relation to this allegation that the statement is false and was made knowing it to be false. I return to the issues concerning public interest and proportionality after I have considered each of the remaining allegations.

Allegation 48 concerns an assertion by Mr Tinkler that the continued allegations of aviation criminality are wholly unfounded. For the reasons I have given in relation to Allegations 39 and 40, I consider that a sufficiently strong prima facie case has been demonstrated in relation to this allegation that the statement is false and was made knowing it to be false.

Allegation 31

Allegation 32

Allegation 37

Allegations 41, 52 and 53

On 13 May 2011 an article appeared in the Daily Telegraph that reported allegations that Mr Elliott had made or was making concerning Stobart Group Limited including an assertion that the allegations were being investigated by the police in Cumbria and/or the FSA. This led Stobart Group Limited to issue a statement via the London Stock Exchange. The statement included an assertion that “The Company and its directors have not been contacted by any of the authorities referred to and is confident that there is no enquiry…”. This Daily Telegraph article is the article that I concluded Mr Elliott was the source of in the committal proceedings against him that I heard in October 2011.

In Paragraph 20 of his 23 January witness statement, Mr Tinkler confirms that he authorised the release of the statement because the story caused significant damage to the Group’s share price and was untrue. He then says “At the time of the making of the release I was aware that Cumbria Constabulary had confirmed to Trevor Howarth that there had been no investigation … as suggested by the Daily Telegraph and that therefore the Daily Telegraph’s statement that such an investigation … had taken place (which I believe to have been instigated by [Mr Elliott]) was false …”. Mr Elliott alleges that Mr Tinkler could not possibly have believed that there was no investigation at the time when the statement was released by the LSE because at that stage an investigation was on-going, was not discontinued until later that day and the conversation between Mr Howarth and DC Barry Cowin in which Mr Howarth was informed that there was no continuing investigation took place much later on 13 May and after the statement had been released by the LSE.   

The evidence of DC Cowin was given before me in the contempt proceedings I heard in 2011. The thrust of his evidence on that occasion was focussed on the allegation that Mr Elliott was the source of the story that had been published by the Daily Telegraph. That evidence establishes that the police had been investigating allegations made to them by Mr Elliott from at least September 2010 to 13 May 2011.  It was confirmed that the press coverage stimulated a review of the investigation and that a senior officer decided in the course of the morning of 13 May that no further action should be taken. He confirmed also that a meeting took place with Mr Howarth during the afternoon and it was in the course of that meeting that Mr Howarth was told that the enquires by the police were at an end.

In those circumstances it is hard to see how at the date when the 23 January 2013 statement was signed by Mr Tinkler, he could still have believed that there had been no investigation by the police into the allegations made by Mr Elliott. However, I do not regard his evidence as to his belief as of central importance to any issue to which the statement was addressed. The witness statement is in support of the application to strike out the counterclaim made by Mr Elliott and/or for summary judgment on the counterclaim. The particular allegation being addressed is an allegation that the statement released by the LSE contained false allegations which are alleged to have been malicious falsehoods. The evidence that matters therefore is that relating to Mr Tinkler’s belief as at the time when the LSE statement was released. He had no knowledge of the police investigation at that time. His assertion that he had received confirmation from the police that there was no continuing investigation was not available to him at that time. He has accepted that his assertion to the contrary was erroneous – see his statement of the 18 March 2013.

In those circumstances, whilst I am satisfied that Mr Elliott has established a strong prima facie case that Mr Tinkler’s 23 January statement is false in its assertion that assurances had been received from the police prior to the release of the statement via the LSE, there is no sufficiently strong evidence that Mr Tinker either knew that part of his statement was false at the time he signed it or that when he signed it he was reckless not caring whether what he had said was true or false. The evidence establishes only that he was mistaken and that is not a proper foundation for an allegation of contempt.

In relation to the assertion that Mr Tinkler still did not believe that any enquiry had been initiated, the assertion was immaterial for the reasons I have given and in any event was easily met for the limited purposes the 23 January statement was prepared by producing the transcript of DC Cowin’s evidence. Thus even if it could be said that Mr Elliott had established a sufficiently strong prima facie case that this assertion was false, and that Mr Tinkler knew it to be false at the time when he signed the statement, the evidence was not material and if it was it could be easily answered by reference to the transcript of DC Cowin’s evidence. In those circumstances it would be disproportionate to permit contempt proceedings to be brought in relation to this allegation and the public interest would not be served by such a process given the lack of materiality of the allegedly false statement and the resources that would be taken up in addressing that allegation. For these reasons, permission must be refused in relation to Allegation 41. Allegation 52 is concerned with Paragraph 43 of Mr Tinkler’s statement of 18 February 2013. Nothing arises that has not already been considered and I refuse permission for the same reasons that I refuse permission in relation to Allegation 41. Similar considerations apply to Allegation 53 in respect of which I also refuse permission for like reasons. 

Summary of Conclusions Concerning Each Allegation Relied On By Mr Elliott

Public Interest, Proportionality and Other Discretionary Factors

As I have said already there is a strong public interest in emphasising the dangers of making false statements in witness statements that are known to be untrue or which are made recklessly, not caring whether or not they are true. This interest applies to all statements in whatever type of proceedings they are deployed. The reasons are obvious – In the context of civil justice, false statements place innocent parties at risk of being deprived of, rather than vindicating, their rights and entitlements or increasing their liabilities, false statements increase the cost of litigation for innocent parties and increase the burden on the public by lengthening trials and hearings unnecessarily thereby delaying other cases needlessly, and/or increasing the cost to the public of providing a civil justice system, and increasing the number of appeals.

There is however a particular and additional public interest that applies in relation to statements deployed in support of (or which confirm as true information supplied to judges in support of) without notice applications. It has long been the case that parties applying to the court without notice owe a duty to the court to disclose everything known or which could reasonably be ascertained by them that might be relied on by the respondent to such an application as an answer to it.  To fail in that duty is to expose such a respondent to the risk of very serious injustice that may but often is not readily compensated by a cross undertaking by the applying party to make good any loss sustained as a result of the order sought being wrongly granted.

The policy reasons that underlie this rule serve to emphasise the very serious mischief that can arise from including false statements in witness statements used to obtain (or which confirm information supplied to a Judge for the purpose of obtaining) orders from the court on without notice applications. It follows in my judgment that there is a very strong public interest in permitting contempt proceedings to be brought where a strong prima facie case has been shown that false statements are contained in witness statements used to obtain order without notice to the respondents or which confirm information given to courts on such applications.. In my judgment this factor is one that can in an appropriate case provide a tipping point in striking the balance between permitting contempt proceedings to be brought and refusing permission on proportionality grounds. 

This point is of particular importance in relation to Allegations 3, 4 and 8. Allegation 8 refers to a statement of particular significance for the reasons identified by Sharp J in Paragraph 25 of her judgment set out above for as she observed the point was obviously relevant to whether the Claimants were likely to establish that publication should not be allowed. More generally, the question of whether information is material is for the judge not the party applying and thus an assertion that the information supplied though false was immaterial is likely to be at best only a partial answer.

The first of the public interest factors I have mentioned tends to support the view that permission should be given in relation to each of the allegations in respect of which I have found a sufficiently strong prima facie case to have been established. In my judgment the second of the public interest factors that I have identified strongly supports the view that permission should be given in relation to Allegations 3, 4 and 8.

The Defendants contend that Mr Elliott has an ulterior purpose in seeking permission to commence contempt proceedings namely to continue a vendetta against the Stobart parties, to use the court process as a method of making or repeating serious allegations without being exposed to the risk of either defamation proceedings or proceedings for contempt by breaching the Tetlow Order and to “ relitigate … the Tetlow judgment” – see Paragraph 42 of Mr Hollander’s skeleton argument.

There is no doubt at all that Mr Elliott is aggrieved by the fact that judgment was entered against him by Judge Tetlow in his absence when he had applied for an adjournment in the circumstances set out above. He is aggrieved because he considers his Article 6 right to a fair trial was compromised and because the Tetlow Order was so wide as to disproportionately interfere with his Article 10 rights and does so because it was made without any attention having been drawn to s.12 of the Human Rights Act 1998 by Leading counsel then appearing for the Stobart parties (not Mr Hollander, as I have said already).  This sense of grievance has been fed by his inability to obtain permission to appeal (because he did not apply until he was substantially out of time for so doing and because he had an alternative remedy available which was to apply to set aside the judgment) and because he has been unable to uphold Sharp J’s decision to set aside the judgment because the application to set aside was not made promptly. All this leads Mr Hollander to submit that even if a strong prima facie case of contempt has been demonstrated the court should refuse permission because to give permission would be to facilitate Mr Elliott’s ulterior purpose.

I am not able to accept that submission for the following reasons. First, given the limited number of allegations in respect of which I have found a sufficiently strong prima facie case to be established, I do not consider there is a realistic risk of Mr Elliott being able to use the proceedings for the purposes that concern Mr Hollander. A judge hearing the contempt application will be able to confine the hearing strictly to a determination of the allegations that arise. I have no idea whether Mr Tinkler or Mr Howarth will choose to give evidence in relation to liability. If they do not they cannot be cross-examined. If they do, any cross-examination will be confined strictly to the issues that arise on the application. In accordance with usual practice the liability aspect of the contempt application will be determined first. The question of whether and if so what penalty to impose will arise only once liability has been determined. If Mr Tinkler or Mr Howarth wish to give evidence at that stage they will be entitled to do so but again any cross examination will be strictly confined to the issues that arise at that stage.

The real point however is this – if, as is alleged, Mr Tinkler and Mr Howarth have knowingly made false statements then the fact that the proceedings may attract unwanted publicity or expose the respondents to unwanted litigation ought not to be permitted to trump the public interest issues that I mentioned at the start of this section of the judgment. Likewise the fact that the Stobart parties were able to obtain the Tetlow Order in the absence of Mr Elliott and without any meaningful consideration of the evidence or the law ought not be permitted to prevent the investigation of the limited number of allegations of contempt where I have found a sufficiently strong prima facie case to justify granting permission.  The requirement for a strong prima facie case to be demonstrated before permission is granted operates as a filter to prevent scurrilous allegations from being made and if the allegations should ultimately be found not to have been proved then a judgment to that effect will vindicate those against whom the allegations are made.

I now turn to proportionality. In relation to this point the submissions made by Mr Hollander are in essence these. The cost of the contempt proceedings will be substantial and Mr Elliott has been made the subject of a number of costs orders that have not been paid. The total sum outstanding is £91,000. Aside from that the Stobart Defendants submit that the various claims made against Mr Elliott and defending the various claims and applications made by Mr Elliott have cost them many hundreds of thousands of pounds. The question they ask (rhetorically) is whether it is right in those circumstances to require the Stobart Defendants to incur the costs of defending contempt proceedings, particularly where the allegations have been made time and again by Mr Elliott. 

Whatever the position might be in relation to applications of a purely private nature, the fact that Mr Elliott owes money to the Stobart Defendants (if such be the case) is or ought not to be a bar to contempt proceedings where a sufficiently strong prima facie case has been demonstrated. Contempt proceedings are brought in the public interest not to vindicate private rights. That is why the court’s permission is required before they can be continued. If that is right then it is difficult to see how the existence of a debt, even a debt in relation to litigation between the same parties and in respect of which the allegation of contempt is made, can operate as a bar to the continuation of such proceedings once it has been concluded that a sufficiently strong prima facie case has been demonstrated. In any event, if money is owing to some or all of the Stobart Defendants, then it is open to the Stobart Defendants to take enforcement action if they choose to do so.

All of that said, I consider that there is a duty on the court to anxiously scrutinise applications of this sort in order to ensure that there is for example no needless duplication of allegations. All these cases are likely to be fact specific but in this case I do not think it likely that vindication of the public interest that I have identified will require a penalty to be imposed consecutively if a number of breaches focussing on essentially the same allegation were to be found proved. That being so I consider it disproportionate to permit the same allegation to be made repeatedly, particularly in relation to points that are made in statements that are in answer to the original allegations made by Mr Elliott. Further, I consider that there is a distinction to be drawn between allegedly false statements contained in witness statements that confirm what a judge was told at a without notice hearing as true (which in my judgment engage a heightened public interest for the reasons already given) and those contained in statements made in support of an application made on notice or in answer to the present application. I also consider it necessary to look at the substance of the allegedly false statement in its context in order to decide whether it is proportionate to permit contempt proceedings to be made in relation to it.

In my judgment to permit contempt proceedings in relation to Allegations 3, 4 and 8 amply satisfy the proportionality test. The allegations are ones that can be determined at a hearing (inclusive of a judgment on liability, and a determination of penalty should that arise) that should be measured in hours rather than days. Such a hearing can be conducted at relatively modest cost. The allegations are in relation to statements of at least potential importance because they are contained in a witness statement ordered by the judge hearing a without notice application for the purpose of confirming what he was told and thus the basis on which he made the order sought.

Similar considerations apply to Allegation 13. This relates to an allegedly false statement contained in a statement that was deployed initially at a without notice application. Allegation 19, although at least in part repetitious of the matters that arise in relation to Allegation 4, is an allegation made against a different respondent and like Allegation 13 relates to a statement used in support of an application for an injunction without notice. I do not consider that it would be disproportionate to permit these allegations to be determined at a full hearing.

I consider on balance that Allegation 28 should be permitted to proceed further. Whilst that Allegation covers ground in part already covered by Allegation 4 the nature of the statement is different. It does not focus on a claimed opinion but on an asserted fact. No significant additional cost will be involved in permitting this allegation to be determined because it will involve substantially the same evidence as will need to be considered in relation to Allegation 4.

Allegation 39 should not be permitted to proceed further. It adds nothing of substance to the allegations that I have decided should proceed. Thus there would be no public interest benefit in permitting it to proceed further in the particular circumstances of this case given that similar allegations made in other statements will be considered and it would be disproportionate to allow it to do so. Similar considerations apply to Allegation 48 with the additional feature that the statement has been filed in answer to an earlier contempt allegation.

Allegation 40 is factually different from the other aviation allegations because it is concerned with an allegation that the structure adopted by WADI was one that Mr Elliott had advised should be adopted. The public interest in relation to this allegation is confined to the first one of general application that I noted as the outset of this part of the judgment and is contained in a witness statement that was served in support of an application for summary judgment and thus in aid of an application to be determined on notice. Determining the application will not add materially to the length of the hearing in relation to the Allegations that I have determined should be heard or to the evidence that will have to be deployed. In those circumstances, I conclude that permission should not be refused on proportionality grounds and that permission should be granted in relation to that allegation as well.

Conclusion

At the outset of the hearing of this application Mr Elliott applied for a stay of this application pending an application by him to the European Court of Human Rights (“ECtHR”) relating to the decision of the Court of Appeal to overturn the decision of Sharp J and/or the refusal of the Supreme Court of permission to appeal the decision of the Court of Appeal. I refused that application for reasons that I gave at the time.

The counterclaim is one that was made by Mr Elliott in the 90133 proceedings, which were commenced and then discontinued by the Stobart claimants as I have described above. The application was due to be heard on 16 January 2013 but was adjourned on the application of Mr Elliott who wished to amend his Counterclaim with the benefit of legal advice. Mr Elliott served a completely redrawn Counterclaim and it is by reference to that document that the applications have been argued. It does not appear that Mr Elliott has received any meaningful legal advice in relation to the preparation of this document.

The substitute pleading that has been filed by Mr Elliott is prolix and confusing. It does not clearly spell out what alleged causes of action are advanced against which defendants, nor does it set out the totality of Mr Elliott’s case in relation to each cause of action in one section of the pleading.  Mr Elliott could have no reasonable complaint if the pleading was struck out on that ground alone. I have resisted that course however, taking the view that a degree of latitude has to be shown to a litigant in person in Mr Elliott’s position. For the reasons that I set out below however, I have come to the clear conclusion that the amended pleading must be struck out in its entirety and that the counterclaim is wholly without merit.

Part of the counterclaim asserts a claim formulated by reference to an alleged tort of perverting the course of justice. There is no such tort. Mr Elliott did not suggest the contrary, and no authority that I was taken to suggested that even arguably there might be such a tort. It follows that the whole of the counterclaim that relies upon the existence of such a tort must be struck out. Very unhelpfully, Mr Elliott’s document is not set out in clearly sequentially numbered paragraphs, so identifying easily the paragraphs that are to be struck out is not straightforward. However, all those paragraphs and sub-paragraphs set out under the heading “Perverting the Course of Justice” at pages 8 to 11 of the amended counterclaim are struck out, as are the allegations under the heading “Further perverting the Course of Justice” at pages 16-17 and those under the heading “Newcastle Perversion of the Course of Justice” at pages 21-22.

There is no tort of perjury – see Clark & Lindsell, 20^th Ed., Para 16-72. It follows that all the paragraphs of the amended counterclaim under the heading “Perjury contrary to the Perjury Act 1911” at pages 28-29 must be struck out as well.

There is no tort of “Contempt of Court” so the allegations made under the heading “Contempt of Court” at pages 14-15 must also be struck out.

The next cause of action that I must consider is an allegation of abuse of process. This has been pleaded at various parts of the amended pleading. It covers the paragraphs under the subheading “The Tort Of Abuse of Process”  at pages 5-8. The scope of this tort was considered recently in Land Securities Plc v. Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467. The current scope of the tort was summarised by Etherton LJ at [67] in these terms:

“The following points appear clearly from the authorities. …Third, Grainger has never been overruled. It is authority for a tort of abuse of process. The only other case within this jurisdiction, in which the tort has arguably been successfully invoked, is Gilding, over 140 years ago. Both cases concerned a blatant misuse of a particular process, namely arrest and execution, within existing proceedings. In both cases the abuse of that process involved compulsion by arrest and imprisonment to achieve a collateral advantage. Fourth, in cases of abuse of process, it is irrelevant whether or not there was reasonable or probable cause for the proceedings, or in whose favour they ended, or whether they have ended at all. Fifth, statements in the English authorities describing a broader application of the test of abuse of process than the critical factual elements of Grainger and Gilding were all obiter. … Sixth, as to the broader statements of principle, there is no clearly accepted approach for identifying what is sufficiently collateral to establish the tort of abuse of process. The analysis which appears to receive most support is that of Bridge LJ in Goldsmith.”

It is not necessary on this appeal, as it was not necessary for the Deputy Judge, to define the precise limits of the tort of abuse of process. I consider, however, that, even if the tort can be committed outside circumstances of compulsion by arrest, imprisonment or other forms of duress, there is no reasonably arguable basis for extending the tort beyond the other particular heads of damage which must exist for invocation of the tort of malicious prosecution. A different conclusion would not only go beyond the factual context of Grainger and Gilding, but would be inconsistent with the refusal of the House of Lords in Gregory to extend the tort of malicious prosecution to all civil proceedings. It makes no sense severely to limit the cause of action for malicious prosecution, an essential ingredient of which is that the proceedings had been brought without reasonable or probable cause, to three particular heads of damage, but to extend to all cases of economic loss a tort of abuse of process which can apply even where the alleged "abuser" had a good cause of action. The dangers of parallel litigation and - echoing the concerns of Slade LJ in Metall - deterring the pursuit of honest claims are obvious. The wider descriptions of the tort of abuse of process in cases prior to Gregory must be re-appraised in the light of the decision of the House of Lords in that case and the policy considerations underlying it.

Etherton LJ (as he then was) summarized the analysis of Bridge LJ as he then was in Goldsmith in these terms at [48]:

“Bridge LJ said (at page 503D) that, for the purpose of Lord Evershed's general rule in Majory, the phrase "collateral advantage" cannot embrace every advantage sought or obtained by a litigant which is beyond the court's power to grant him. He said (at page 503F-H) that one can certainly go so far as to say that, when a litigant sues to redress a grievance, no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for the ulterior purpose, he would not commence proceedings at all, that is an abuse of process. Bridge LJ said that those two cases were plain, but acknowledged that there is a difficult area in between. He postulated the situation of a litigant with a genuine cause of action, which he would wish to pursue in any event, who could be shown also to have an ulterior purpose in view as a desired by-product of the litigation. Bridge LJ very much doubted whether such a litigant could be debarred from proceeding. The Deputy Judge sought to apply Bridge LJ's analysis to the facts of the present case, but Mr Nugee submitted that he failed to apply it correctly.”

The three heads of damage referred to by Etherton LJ as recoverable for malicious prospection and abuse of process were those identified in Gregory v. Portsmouth City Council [2000] 1 AC 419 at 426-7 in these terms:

"The inquiry must proceed from the premise of the law as it stands. The tort of malicious prosecution is narrowly defined. … Holt CJ in Savill v Roberts (1698) 12 Mod. Rep. 208 … defined the interest protected by the tort as follows:
"there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff's] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses."

It follows from this that for a claim for abuse of process to succeed a claimant must be able to show at the very least that in commencing and continuing the litigation concerned, the claimant was or is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for the ulterior purpose, he would not have commenced proceedings. Even then the claimant is limited to recovering damages for injury to reputation, for imprisonment and to recover the costs of defending the relevant proceedings.

It was submitted by Mr Hollander at Paragraph 87 of his skeleton argument that because the 40076 proceedings had been resolved in favour of the claimants in those proceedings it therefore followed that the tort relied on was not available to Mr Elliott. I reject that submission as being inconsistent with the fourth proposition identified by Etherton LJ identified above.

However, there is no arguable basis on which Mr Elliott can contend that the proceedings of which he makes complaint (the 40076 proceedings and the 90133 proceedings) were commenced for an ulterior purpose unrelated to the subject matter of the litigation, much less that the claimants in those proceedings would not have commenced the proceedings but for having such a purpose. Mr. Elliott suggests that the reason was to prevent the development of Carlisle Airport but Mr. Elliott was able to commence judicial review proceedings in relation to that development and had some limited success in so doing. He suggests it was also to conceal the past commission of aviation offences but that makes no sense. Those allegations were reported to the CAA who investigated them. I accept Mr. Hollander’s submission that the purpose of commencing each set of proceedings was for the purpose of preventing Mr. Elliott from making statements that the Stobart Claimants considered to be defamatory.

Since there is no arguable basis on which the claim as formulated can be advanced it must be struck out. Independently of that the Particulars of damage starting on page 6 of the amended counterclaim claims heads of loss that apart from (d) (e) and (h) are not even arguably recoverable as damages for this tort. Each of the heads that are recoverable in principle are wholly unparticularised. In the result the claim for damages for abuse of process must be struck out.

I now turn to claims for malicious prosecution and “abuse of civil procedure”. There is no tort known to law that falls within the last mentioned description. If and to the extent the counterclaim depends on such an alleged cause of action it must be struck out of that basis.

So far as malicious prosecution is concerned, that tort is not even arguably available to the claimant in respect of the 40076 proceedings because those proceedings were concluded in favour of the claimants. As Etherton LJ held in Land Securities (ante) at [67]:

“The following points appear clearly from the authorities. First, there is no general tort of malicious prosecution of civil cases. On policy grounds, the tort of malicious prosecution in relation to civil cases is confined to the three well established heads of damage recognised in Quartz Hill and Gregory. Second, essential ingredients of a claim for malicious prosecution are the absence of reasonable and probable cause and that the proceedings have ended in favour of the person maliciously prosecuted.”

There is no arguable basis on which Mr Elliott could contend that reasonable and probable cause was absent when the 90133 proceedings were commenced. The fact that the claim was discontinued takes matters no further because of the reasons for the commencement and then discontinuance of the proceedings. In any event the damages claim suffers from the same defects that I have noted in relation to the abuse of process claim.

Even if these points were wrong, the House of Lords held in Gregory v. Portsmouth City Council [2000] 1 All ER 560 that the tort of malicious prosecution was not available outside criminal proceedings and a closed class of civil proceedings, none of which are relevant here – see the opinion of Lord Steyn at 565e – 566g. The House agreed with Lord Steyn that the tort should not be extended to civil proceedings generally – see 570h-571b. It follows from this that those parts of the counterclaim that appear in section 3 of the pleading between pages 11 and 14 must be struck out.

At section 5 of the counterclaim it would appear that Mr Elliott seeks to advance a claim in damages by reference to alleged aviation offences, the detail of which is set out in the earlier part of this judgment. There is no arguable basis on which the matters alleged (even if proved) could give rise to a cause of action at the suit of Mr Elliott. It follows that section 5 of the counterclaim from page 15 to 16 must be struck out as disclosing no cause of action.

I now turn to the allegations of malicious falsehood. The relevant allegations are pleaded at section 7 of the counterclaim at pages 17 – 21. There is a one-year limitation period that applies to such claims  - see s.4A of the Limitation Act 1980. The court has discretion to extend the limitation period but Mr Elliott has not made an application for an extension of time. A number of the allegations now relied on were relied on by Mr Elliott in the defamation proceedings that he commenced in the Newcastle District Registry.  Some of those were out of time. The District Judge refused to extend time then and further struck out the claim. There was no appeal from that decision. With that in mind, I now turn to each specific allegation that has been made, taking the letter identifying the allegation from the counterclaim where the allegations relied on are set out at pages 17-18 at paragraphs (a) to (l).

Paragraphs (a) (b) and (c) are allegations first made in 2008 and the allegations made in (b) and (c) are allegations first made in the Newcastle proceedings where an extension of time was refused and the claim was struck out. Paragraph (d) is an allegation that Mr Elliott on his own case alleges relates to a statement made in 2007 and thus is time barred. Precisely similar considerations apply in relation to Paragraphs (e) and (f). Paragraph (g) is not time barred but is unarguable for the reasons identified in Paragraph 93 of Mr Howarth’s statement signed on 10^th January 2013. The statement alleged at Paragraph (h) was made in excess of a year prior to the commencement of proceedings and thus is time barred. Paragraph (i) does not contain a properly particularised allegation but any allegation made by reference to the statement is time barred. Paragraph (j) is not properly pleaded because it refers to an article without identifying the particular passage or passages relied on. Paragraphs (k) and (l) relate to articles published in 2010. The paragraphs fail to plead properly the allegations made and any allegations that could be made by reference to the article referred to would be time barred. It follows that the claim based on alleged malicious falsehood must be struck out.

At paragraph 9(a) Mr Elliott pleads a claim formulated in false imprisonment. This allegation appears to relate to his imprisonment by order of Judge Main QC. This was a court order. It cannot even arguably give rise to a claim based on false imprisonment though the fact of imprisonment for breach of an order that could be shown to have been obtained by abuse of process might entitle an otherwise successful claimant to recover damages for the fact of his imprisonment. However Mr Elliott does not have an arguable claim in abuse of process for the reasons that I have set out above. In those circumstances, the claim for damages for false imprisonment must be struck out. Similar considerations apply to the claim at Paragraph 9(b). Whilst the allegation in Paragraph 9(c) might in principle be capable of founding a claim based on alleged malicious prosecution (because malicious institution of bankruptcy proceedings is one of the limited type of civil cases capable of founding such a claim) it is otherwise unarguable for the reasons given above in relation to the malicious prospection claims. The foundation of the bankruptcy petition was unpaid costs orders made against Mr Elliott and thus was presented by reference to sums due by or under a court order.  It is difficult to see how any credible claim that the petition was presented maliciously could be maintained in such circumstances.

The final claim I need to consider is the allegation at Paragraph 10 on page 27 of the counterclaim. This is an allegation of fraud made by the claimant “  … on behalf of himself and all shareholders in the Stobart Group …”. The victim of the alleged fraud is the company not the individual shareholders. It follows that any claim is a derivative claim that requires the procedure set out in ss. 260-263 of the Companies Act 2006 to be adopted. It has not been. The claim must be struck out in consequence.

I will hear the parties further as to the detailed terms of the order, as to any costs orders sought, as to directions for disposal of the contempt proceedings (which I would hope could be disposed of in a hearing lasting no longer than a day to a day and half to be listed in a matter of weeks) and as to whether the application by the Stobart parties for a General Civil Restraint order should be heard at this stage or after final determination of the contempt proceedings. I will also hear the parties as to what orders ought to be made in relation to Mr Elliott’s application for third party disclosure and for a witness summons.