Tinkler v Ferguson & Ors

When it was commenced, this was a claim for libel and malicious falsehood brought by the Claimant (“Mr Tinkler”) against the five defendants. Mr Tinkler has abandoned the libel claim and so it is now solely a claim for malicious falsehood (“the Malicious Falsehood Action”). It concerns an announcement made on the London Stock Exchange’s Regulatory News Service (“RNS”), by Stobart Group Limited (“Stobart”), on 29 May 2018 (“the Announcement”).

At the time of the Announcement:

The litigation between Mr Tinkler, Stobart, and the five Defendants was caused by a dispute that had arisen, within the board of Stobart, about whether Mr Ferguson should continue as Stobart’s Chairman. Mr Tinkler believed he should not; the five Defendants believed he should. It was in the context of that dispute that the Announcement was issued by Stobart. It was issued in the name of the “Ongoing Board”, which was said in the Announcement to include each of the five Defendants.

The Malicious Falsehood Action is not the only litigation to have arisen from the dispute. Separately, Stobart commenced a claim against Mr Tinkler in the Commercial Court on 15 June 2018 and Mr Tinkler brought a counterclaim against Stobart in those proceedings (“the Stobart Action”). The Stobart Action was expedited, and tried before HHJ Russen QC (sitting as a Judge of the High Court) between 12-29 November 2018. Judgment was handed down on 15 February 2019 ([2019] EWHC 258 (Comm)) (“the Stobart Judgment”).

It suffices for present purposes for me to summarise the overall dispute as follows. Matters came to a head between Mr Tinkler and Stobart (and the five directors sued in the Malicious Falsehood Action) in May 2018, when Mr Tinkler indicated that he was unhappy with the performance of Mr Ferguson. Mr Tinkler wrote to the board of Stobart, on 25 May 2018, informing it that he intended to vote against the re-election of Mr Ferguson as Chairman of the board of Stobart. The vote was due to take pace at Stobart’s Annual General Meeting on 6 July 2018. Stobart made an RNS announcement of Mr Tinkler’s decision to oppose the re-election of Mr Ferguson on 17 May 2018. Following that, the Stobart board (without Mr Tinkler and John Garbutt) considered whether a further RNS announcement should be made to give further details of the views of the other members of the board on whether Mr Ferguson should be re-elected. In short, a sub-committee of the board of Stobart was formed. Its members were Mr Brady, Mr Coombs and Mr Wood. Mr Ferguson attended most meetings of the sub-committee although not in a formal capacity. Largely acting upon recommendations made by the sub-committee, Stobart issued the Announcement on 29 May 2018 which is the publication sued upon by Mr Tinkler in the Malicious Falsehood Action.

Also, on 9 June 2018, Mr Tinkler sent a letter to the shareholders of Stobart (“the Shareholder Letter”). He expressed himself to be horrified by the “recent announcements issued and action taken in the name of the Company, and by the public mud-slinging in which some of my fellow directors have seen fit to engage without any regard to the waste of the Company’s resources involved or the impact on employees, customers, and suppliers”. His letter urged shareholders to vote against Mr Ferguson and in favour of Philip Day, then the CEO of the Edinburgh Woollen Mill (“Mr Day”), and concluded by saying “a change of Chairman would help to uphold the agreed company strategy, to stabilise operational management and to deliver the best returns for shareholders.” Mr Tinkler criticised the establishment and composition of the subcommittee and the process which led to, and the contents of, the Announcement. He considered that it was defamatory of him. He referred to his own track record and the fact that the share price of 296 pence, when he had ceased to be CEO, had since fallen 28% to 214 pence per share. He said he was saddened by “the impact this disagreement amongst directors is having on the Company's operational management.” Mr Tinkler urged shareholders to appoint Mr Day as Chairman of Stobart in place of Mr Ferguson. On 9 June 2018, Mr Tinkler forwarded the Shareholder Letter to all employees of Stobart (“the Communication to Employees”).

On 10 June 2018, in his capacity as CEO of Stobart, Mr Brady sent an email to the company’s employees stating that Stobart had not wanted the internal discussion with Mr Tinkler to become public but that it was Stobart’s belief that Mr Ferguson should be allowed to continue as Chairman.

On 14 June 2018, Stobart’s solicitors sent a letter to Mr Tinkler’s solicitors intimating a substantial claim against him and stating that Stobart had decided to terminate Mr Tinkler’s employment. A separate letter from Stobart, also dated 14 June 2018, purported to terminate Mr Tinkler’s employment, with immediate effect, on the grounds that he had attempted to destabilise Stobart. Mr Tinkler’s dismissal was announced to employees of Stobart by email from Mr Brady later on 14 June 2018. He stated that Mr Tinkler had engaged in “a campaign to attack our Directors with a view to replacing our Chairman with his own choice”.

As noted above, the Stobart Action was commenced on 15 June 2018 (but not served apparently until 24 July 2018). Meanwhile, at the AGM on 6 July 2018, Mr Ferguson was re-elected as Chairman of Stobart.

Mr Tinkler counterclaimed in the Stobart Action for declaratory relief that his purported removal as a director, and termination of his employment, was invalid and that he remained a director of the Company. He also sought an injunction restraining the Board from purporting to remove him as a director.

HHJ Russen QC handed down the Stobart Judgment on 15 February 2019 (see [4] above). I will need to look at the judgment in more detail shortly (with numbers in square brackets referring to paragraphs of the Stobart Judgment), but the issues in the litigation were set out by HHJ Russen QC in [50]. The Stobart Judgment is long, but, in summary, the Judge held:

The decision to issue the Announcement, and whether it contained falsehoods about Mr Tinkler published maliciously by the Defendants in the Malicious Falsehood Action, formed part of the wider issue of whether Mr Ferguson, Mr Brady, Mr Coombs and Mr Wood (referred to as “the Four Directors” in the Stobart Judgment) had acted in breach of their fiduciary duties as directors in the steps they took against Mr Tinkler (see Issue 4(c) in [50]; [264]-[275], [312], [667]-[668], [752], [768], and particularly [785]-[794]).

The Court of Appeal has twice refused applications by Mr Tinkler for permission to appeal against the Stobart Judgment. On 6 June 2019, Flaux LJ concluded that Mr Tinkler’s challenges to HHJ Russen QC’s findings that he had acted in breach of his fiduciary duties as a director of Stobart had no real prospect of success. Mr Tinkler asked the Court of Appeal to re-open the application for permission to appeal on the basis of an alleged apparent bias of the trial judge. This further application was refused by Males LJ on 12 November 2019.

The Claim Form was issued on 8 June 2018 (but the Particulars of Claim were not served until 26 June 2018). On 17 December 2018, i.e. after the Stobart Action had been tried, but before judgment was handed down, I determined issues relating to the meaning of the Announcement for the purposes of the Malicious Falsehood Action ([2018] EWHC 3563 (QB)) (“the Meaning Judgment”). The terms of the

I found (at [39]) that the single meaning of the Announcement for the purposes of the defamation element of the Malicious Falsehood Action was:

I also held that meaning (a) was factual and not defamatory of Mr Tinkler and that meanings (b) and (c) were expressions of opinion: [40]-[44]. Only meaning (c) was defamatory of Mr Tinkler, but not seriously enough to raise an inference of serious harm to reputation under s.1 Defamation Act 2013: [45]. In consequence, if the defamation element of his claim was to continue, Mr Tinkler would have to take on the burden of establishing, by evidence, that the requirements of s.1 were met: [46].

As for the balance of the Malicious Falsehood Action, I held (at [56]) that, based on the Mr Tinkler’s originally pleaded meaning, the following was an available meaning for the purposes of malicious falsehood (“the Malicious Falsehood Meaning”):

Mr Tinkler’s appeal against the Meaning Judgment was dismissed by the Court of Appeal on 15 May 2019 ([2019] EWCA Civ 819). Longmore LJ held that meaning (c) for the defamation claim, was “very much at the lower end of the scale” and one from which no inference of serious harm to reputation could be drawn [28].

Little happened in the Malicious Falsehood Action between the Meaning Judgment on 17 December 2018 and the appeal hearing on 3 April 2019. Importantly, however, it was during this period that the Stobart Judgment was handed down, on 15 February 2019.

A week prior to the Court of Appeal handing down its judgment on 15 May 2019, a hearing took place before Nicol J to deal with disputed amendments that the Claimant wished to make to his Particulars of Claim consequent upon the Meaning Judgment. One of the issues raised at the hearing was the adequacy of Mr Tinkler’s pleaded case on harm to reputation. As noted above (see [16]), one consequence of the Meaning Judgment was that Mr Tinkler was now required, as part of his defamation claim, to demonstrate serious harm to his reputation caused by publication of the Announcement.

In his reserved judgment, handed down on 14 June 2019, Nicol J gave Mr Tinkler permission to make limited amendments to his Particulars of Claim ([2019] EWHC 1501 (QB)). The Judge held that Mr Tinkler was required to give full details of the facts and matters on which he relied on the issue of serious harm ([17]) and noted that his existing Particulars of Claim did not include any plea of special damage ([21]). It is very clear from Nicol J’s judgment that a central issue had been the adequacy of Mr Tinkler’s claim for damage caused by the publication of the Announcement (see [34]). Of particular importance is the fact that Nicol J’s order gave Mr Tinkler the opportunity to revise §§11.3.3 and/or 11.3.4 of his Particulars of Claim to make clear his case on harm/damage. The Judge ordered him to give Further Information about his case that had been sought by the Defendants on this issue. In light of this, I am satisfied that, since at least 8 May 2019, Mr Tinkler has been well aware that the Defendants have been challenging the adequacy of his case on the harm or damage caused by the publication of the Announcement. I am also satisfied that the Court has given Mr Tinkler the fullest opportunity to advance his best case.

On 28 June 2019, Mr Tinkler duly served his Amended Particulars of Claim in the Malicious Falsehood Action pursuant to Nicol J’s Order. Then, on 10 September 2019, by consent, Mr Tinkler served Re-Amended Particulars of Claim. The principal effect of these re-amendments was that Mr Tinkler abandoned his defamation claim in respect of the Announcement, leaving only the claim for malicious falsehood in respect of the Malicious Falsehood Meaning.

On 8 August 2019, Mr Tinkler answered the Request for Further Information about his claim for damage made by the Defendants on 12 July 2019. In response to their request

On 8 October 2019, the Defendants in the Malicious Falsehood Action filed their Defence. It is a substantial document. For present purposes, it is sufficient to note:

Mr Tinkler has not served a Reply. Having abandoned his defamation claim, CPR Part 53 PD53B §4.7 does not apply and so, pursuant to CPR Part 15.8, a Reply was optional. Mr Tinkler is therefore treated as not having admitted any of the facts pleaded in the Defence (CPR Part 16.7(1)).

In Appendix 1 to this judgment, I have set out the paragraphs from Mr Tinkler’s Re-Amended Particulars of Claim which contain particulars of his case on falsity, malice and damage. Although there have been periods in the Malicious Falsehood Action when Mr Tinkler has acted in person, including dealing with the current application, his Statements of Case (and amendments to them) have always been settled by experienced Counsel.

Mr Tinkler seeks to demonstrate that the Defendants published the Announcement maliciously on two bases. First, that they did not believe the Malicious Falsehood Meaning (see [17] above) to be true. In respect of meaning (a), that requires him to demonstrate that they did not actually hold this opinion. Second, that they had a dominant intention to injure Mr Tinkler.

A point made by Mr Laycock, and which forms an independent basis of attack against Mr Tinkler’s claim against him, is that the particulars of malice contain no direct allegations against him (see particularly, for example, §§8.6.2, 8.7.1 and 8.8.1). Mr Tinkler’s case against Mr Laycock is something of an oddity. No allegations of wrongdoing were made against Mr Laycock in the Stobart Action, hence the reference to the “Four Directors”, and it is apparent from the Stobart Judgment that Mr Laycock was actually opposed to the publication of the Announcement in the terms in which it appeared: [264]-[269]. Mr Tinkler has not addressed this difficulty in his Particulars of Claim in the Malicious Falsehood Action. As I have noted, Mr Laycock denies that he published the Announcement (see [24(i)] above). That would be an issue to be resolved if the Malicious Falsehood Action continues. Mr Caldecott QC however objects to Mr Tinkler now making allegations of malice against Mr Laycock in the Malicious Falsehood Action, allegations he clearly deliberately abstained from making against him in the Stobart Action.

By an Application Notice issued on 3 January 2020, the Defendants seek an order staying (alternatively, striking out) the Malicious Falsehood Action on the grounds that it is an abuse of process. In summary, the Defendants contend that continued litigation of the Malicious Falsehood Action would amount to an abuse of process because it would involve the re-litigation of, or collateral attack upon, the Stobart Action and Judgment.

In the alternative, the Defendants contend that, even if the Court finds that the Malicious Falsehood Action is not an abuse of process as a collateral attack on the Stobart Judgment, the claim should be struck out on two further bases:

Finally, and in the alternative to his principal grounds of attack, Mr Laycock seeks the dismissal of the Malicious Falsehood Action, or summary judgment against Mr Tinkler, on the grounds that Mr Tinkler has advanced no case of malice against him (or none that has any real prospect of success).

The Defendants’ Application Notice is supported by the witness statements of Mr Brady, Mr Laycock and the Defendants’ Solicitor, Alan Watts, all dated 23 December 2019.

In response, Mr Tinkler has filed a witness statement dated 23 March 2020 and a witness statement from Paul Hodges also dated 23 March 2020.

The Court has an inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute: Hunter -v- Chief Constable of the West Midlands[1982] AC 529, 536per Lord Diplock.

The Court should not be unduly prescriptive about the circumstances in which abuse of process may be found to arise: Kotonou -v- National Westminster Bank plc [2015] EWCA Civ 1106 [44] per Gloster LJ.

The principle is wider than merely res judicata or issue estoppel. Lord Sumption summarised the various categories of abusive subsequent proceedings in Virgin Atlantic Airways -v- Zodiac Seats UK Ltd [2014] AC 160 [17]-[26], from which I derive the following principles:

Duplicative litigation not only causes prejudice to the defendant, in terms of wasted time, costs or effort and the risk of dispersal of evidence, it is also contrary to the public interest generally to allow the risk of inconsistent findings which arise when different courts at different times are required to examine essentially the same factual dispute. The position is to be judged objectively: “the particular circumstances of the parties will generally be irrelevant; hence the need for special circumstances if the full rigour of the rule is to be alleviated”: Divine-Bortey -v- Brent LBC [1998] ICR 886, 898 per Potter LJ.

To the extent that it is not subsumed in Henderson abuse, a second action which amounts to or involves a collateral attack on a final decision of a court of competent jurisdiction is also liable to be struck out as an abuse of process. It is abusive for a litigant to change the form of the proceedings in order to relitigate the same point: Hunter -v- Chief Constable of the West Midlands, p.541A-542D per Lord Diplock.

Mr Tinkler cited Hollington -v- Hewthorn [1943] KB 587 during the course of his submissions. As Mr Caldecott QC accepted, the principle that, absent some estoppel between the parties, findings of fact in one case are generally not admissible to prove them in another case (whether criminal or civil): Three Rivers DC -v- Bank of England (No.3) [2001] 2 All ER 513 [5], [31]-32], [132]; Secretary of State for Trade & Industry -v- Bairstow [2004] Ch 1 [26]-[27]. Mr Tinkler submitted that Hollington prevents me from even considering the Stobart Action and Judgment on this application. That is to misunderstand the authority. Hollington is a rule of evidence. It prevents a party seeking to prove, usually at trial, some fact or facts by relying on findings of fact in an earlier judgment or decision. I am not dealing with a trial, and Mr Caldecott QC is not relying upon the Stobart Judgment to establish facts upon which the Defendants wish to rely. The rule in Hollington does not prevent a Court from examining earlier litigation to determine whether, given the issues raised and factual findings, a second set of proceedings is an abuse of process. Bairstow illustrates the point neatly.

Mr Tinkler submits that the Malicious Falsehood Action is not an abuse of process, principally because the Stobart Action was brought against him by the company and the Malicious Falsehood Action is brought by him against five individual directors. Before turning to consider the extent to which this submission has any substance, as a matter of law, the fact that the parties are not identical is no bar to a finding that subsequent proceedings are Henderson abusive. What is required is that there is “a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party”: Gleeson -v- J Wippel & Co [1977] 1 WLR 510, 515 per Sir Robert Megarry V-C (approved by Lord Bingham in Johnson -v- Gore Wood & Co, p.32E-G). The Court should not adopt a formulaic approach to the broad, merits-based assessment

In reality, there is nothing in the point that, in the Stobart Action, Mr Tinkler was sued by the company (and he counterclaimed against the company) and in the Malicious Falsehood Action, he has sued five individuals. They were sued as directors, for actions they carried out on behalf of Stobart. Stobart, the company, was a joint tortfeasor with the Defendants for the act of publishing the Announcement complained of in the Malicious Falsehood Action, albeit not one sued by Mr Tinkler. It was an essential part of Mr Tinkler’s case in the Stobart Action that, in publishing the Announcement, the Four Directors (as defined in the Stobart Action, i.e. excluding Mr Laycock) had been in breach of their duties as directors of Stobart. Leaving aside the order in which the Claim Forms were issued (which is a matter of no real consequence), it was always practically open to Mr Tinkler to bring the claim that he made in the Malicious Falsehood Action as part of his counterclaim (or Part 20 claim) in the Stobart Action (or to seek consolidation of the two actions). It was a personal (and probably tactical) choice by Mr Tinkler to sue the five directors personally, and separately from Stobart, in the Malicious Falsehood Action. How the actions were structured, when they were commenced, and the identities of the parties, have no bearing on the fundamental point: both actions concerned the same essential dispute between directors of Stobart. The Malicious Falsehood Action, concerned with the publication of the Announcement, focused on only a small part of the overall dispute.

The second basis of attack advanced by the Defendants is to the adequacy of Mr Tinkler’s case on damage he alleges was caused by publication of the Announcement. Although in a defamation claim, at common law, damage is presumed upon proof of the publication of defamatory imputations that refer to the claimant, a claimant in a malicious falsehood action is required, at common law, to demonstrate that the publication caused him pecuniary damage. Since Mr Tinkler has now abandoned his defamation claim, leaving only his claim for malicious falsehood, understandably the Defendants have renewed their focus on Mr Tinkler’s case on damage. I say, “renewed” because their complaints have been clearly flagged to Mr Tinkler before even the hearing before Nicol J (see [20]-[21] above).

A claimant in a claim for malicious falsehood can be relieved of the obligation to prove pecuniary damage, if he can bring his claim within s.3(1) Defamation Act 1952, which provides:

“In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage -

(a)

if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or

(b)

if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”

As to damages in malicious falsehood:

Since the hearing in this case, I have handed down judgment in Peck -v- Williams Trade Supplies Limited [2020] EWHC 966 (QB) in which I considered the tort of malicious falsehood and reviewed the role played by s.3(1) in such actions ([12]-[15]). For present purposes, the important principles are that, even where s.3(1) is relied upon, a claimant must be able to show that the damage suffered by him flowed directly from the untruth of the statements of which he complains, i.e. that the damage complained of is attributable to and caused by the falsehood: [13]. Difficult questions of causation of damage can arise in many cases: see discussion in Niche Products [48]. At the pleading stage, the claimant must identify (a) the nature of the loss which it is alleged the falsehoods caused; and (b) the mechanism by which s/he contends that loss is likely to have been sustained: Tesla Motors Ltd -v- BBC [2013] EWCA Civ 152 [37]; Niche Products [35], [45].

The Court has jurisdiction to stay or strike out a claim where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures: in other words, “the game is not worth the candle”: Jameel [69]-[70] per Lord Phillips MR; Schellenberg -v- BBC [2000] EMLR 296, 319per Eady J.

Nevertheless, the Jameel jurisdiction to strike out claims as abusive ought to be reserved for exceptional cases: Stelios Haji-Ioannou -v- Dixon [2009] EWHC 178 (QB) [30] per Sharp J. Courts should not be too ready to conclude that continued litigation of the claim would be disproportionate to what could legitimately be achieved. The conclusion must be that it is impossible “to fashion any procedure by which that claim can be adjudicated in a proportionate way”: Ames -v- Spamhaus Project Ltd [2015] 1 WLR 3409 [33]-[36] per Warby J citing Sullivan -v- Bristol Film Studios[29]–[32] per Lewison LJ.

In defamation actions, an important factor in the assessment of the value of what is sought to be achieved by the proceedings is usually the element of vindication that the claimant hopes to obtain: see the discussion in Alsaifi -v- Trinity Mirror plc [2019] EMLR 1 [42]-[43]. But the principle has a more general application beyond “vindication” in the defamation sense. In Alsaifi, I described it as follows [45]:

“… The Court cannot strike out a claim for a £50 debt simply because, assessed against the costs of the claim, it is not ‘worth’ pursuing. Inherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of vindicating legal rights – as part of the rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigants but society as a whole.”

A dimension of the Jameel jurisdiction that has a potential application in this case is what Lord Phillips said about the public interest in the utilisation of the Court’s resources in the conduct of litigation:

The same principle applies when it comes to the proper management of multi-party litigation.It is not uncommon, in commercial disputes, for parties to wish to proceed to have issues between them resolved by the Court in stages and perhaps in more than one set of proceedings. But to avoid subsequent arguments as to res judicata, estoppel and abuse of process – and to ensure that the Court’s resources are being used appropriately – the parties need to raise with the Court how the various claims that the parties wish to make are to be tried. The Court of Appeal gave guidance in Aldi Stores -v- WSP Group plc [2008] 1 WLR 748. Thomas LJ said:

In Clutterbuck -v- Cleghorn [2017] EWCA Civ 137,the Court of Appeal considered further the Aldi Stores guidelines.

In relation to the first limb of the argument on abuse of process – that Mr Tinkler is seeking to relitigate issues that have been (or should have been) determined in the Stobart Action – Mr Caldecott QC sought to demonstrate the substantial overlap between the issues in the Stobart and Malicious Falsehood Actions by reference to a helpful table in an Annex to the Application Notice. I have reproduced this as Appendix 2 to this judgment. I have omitted references to the statements of case in the Stobart Action, as these have effectively been superseded by the Stobart Judgment.

Unfortunately, the Annex was not served at the same time as the Application Notice. Mr Tinkler raised an objection to this at the hearing, but I was satisfied that its belated service the week before the hearing caused Mr Tinkler no real prejudice. As a document, it simply gathers together, in a convenient table, a list of issues crossreferenced to paragraphs from the statements of case in the Malicious Falsehood Action, the Stobart Action and the Stobart Judgment. All of the underlying documents would have been very familiar to Mr Tinkler. The Annex to the Application Notice was simply a convenient way of presenting and cross-referencing the underlying information from these documents. However, in order to avoid any potential unfairness to Mr Tinkler, I asked Mr Caldecott QC during his submissions to go through the statements of case in the Malicious Falsehood Action and make his submissions as to what he contended were the overlapping issues and the extent to which, he submitted, the Malicious Falsehood Action would represent an attack upon the findings in the Stobart Judgment by Mr Tinkler.

Mr Tinkler took as his starting point a submission that, although the Defendants (with the exception of Mr Laycock) were witnesses in the Stobart Action and were (at least at one time) members of the board, it was hopeless to suggest that they were privies of Stobart when the Stobart Judgment was given. He made the following points:

The issues decided by Judge Russen QC in the Stobart Action were listed by him in [50]. They do not include the question of whether the Defendants maliciously made false statements in the Announcement. The only issue decided by the Judge in relation to the Announcement was whether the Four Defendants had acted in breach of fiduciary duty when they published the Announcement. That is a different issue from the issues that have to be decided in the Malicious Falsehood Action. Judge Russen QC expressly held that he was not deciding issues that would fall to be determined in the Malicious Falsehood Action. The Judge noted that Mr Tinkler had commenced the Malicious Falsehood Action ([312]) and stated, “it is not for me to trespass upon matters which are to be decided in [those] proceedings” [787].

Finally, Mr Tinkler submitted that it cannot be an abuse for him to proceed with the Malicious Falsehood Action where:

Mr Caldecott QC’s submissions on s.3(1) Defamation Act and Jameel have a substantial degree of overlap. The Defendants contend:

Both submissions centre upon the unreality of Mr Tinkler having suffered any real damage as a result of publication of the Announcement, and certainly no damage that he could demonstrate had been caused by publication of the Announcement, rather than damage caused to him as a result of the wider dispute and, since it was handed down, the adverse findings made against him in the Stobart Judgment.

At the outset, Mr Caldecott QC accepted that it is open to Mr Tinkler to bring claims for both defamation and malicious falsehood: Joyce -v- Sengupta (p.342H)and that a claimant who relies upon s.3(1) Defamation Act 1952 does not need to plead and prove special damage. Nevertheless, he contends that Mr Tinkler’s pleaded claim as to the likelihood of publication of the Announcement causing him pecuniary damage, and, particularly, the explanation of the mechanism whereby such damage was likely to be caused, is hopeless. In the language of CPR Part 3.4(2)(a), his statement of case discloses no reasonable grounds for bringing his claim.

Mr Caldecott QC highlighted the fact that, when it was commenced, the Malicious Falsehood Action contained a claim for defamation which contended that the Announcement bore seriously defamatory imputations against Mr Tinkler, including that he had acted in breach of his duties as a director of Stobart and was “so lacking in integrity that he [was] unfit to hold the office of company director”. In paragraph 10 of his original Particulars of Claim, he contended that publication of these defamatory imputations had caused “serious damage to his reputation”. He pleaded that Announcement was “self-evidently extremely grave”. In his Re-Amended Particulars of Claim, Mr Tinkler is still alleging that the publication of the Announcement has caused “loss and damage including serious damage to his reputation”. But having abandoned his defamation claim, Mr Caldecott contends that Mr Tinkler confronts two problems:

Further, paragraph 10 has been amended by Mr Tinkler now to state that it was the publication of the false statements (see [17] above) (rather than the “gravely” defamatory imputations he originally complained about) that was “likely to cause him pecuniary loss”. Mr Caldecott QC submits that the action, as it now stands, is unrecognisable from its initial form in terms of both seriousness and the potential for what is complained about, now, in the Announcement, to cause pecuniary loss. Perhaps most importantly, the Re-Amended Particulars of Claim contain no proper explanation of the mechanism of how publication of the Announcement was likely to cause pecuniary damage to Mr Tinkler, that is before Mr Tinkler has to confront the difficulties of causation.

On that issue of causation, Mr Caldecott QC highlights the chronology of events:

Turning to the particulars of damage set out in the Re-Amended Particulars of Claim, Mr Caldecott QC made the following submissions:

More widely, Mr Caldecott QC submitted that if the Court accepts the Defendants’ submission that Mr Tinkler is not entitled to re-open the adverse findings against him the Stobart judgment, it would follow that the case on the falsity of Malicious Falsehood Meaning (a) in §8 of the Re-Amended Particulars of Claim (destabilisation at a crucial time for the company’s business) is abusive and must fail. That, he submits, renders the case on causation of damage all the more unsustainable since this meaning eclipses the surviving meaning (b) (requiring the board to deal with various challenges) but appears in the same publication.

In his submissions in response, Mr Tinkler initially complained that he had been ambushed by amendments to the Application Notice that the Defendants had sought to make in the week before the hearing, specifically to add a further ground on which Mr Tinkler’s claim ought to be struck out for failing to disclose a reasonably arguable case under s.3(1) Defamation Act 1952. I do not accept that submission. Whilst it would have been better had the Application Notice contained this ground from the outset, the reality is that the complaint about the adequacy of Mr Tinkler’s case on damage has been a consistent theme since the hearing before Nicol J last May (see [20]-[21] above). It has not come as a surprise to Mr Tinkler. The Defendants are simply reprising a familiar theme. s.3(1) Defamation Act 1952 has become the focus of their attack since Mr Tinkler abandoned his defamation claim in the Re-Amended Particulars of Claim. The issue I have to decide is whether Mr Tinkler’s current statement of case fails to disclose a proper case under s.3(1) Defamation Act 1952. Even if I upheld the Defendants’ submissions, there would be a further separate question, to which the complaint of ambush is more germane: whether Mr Tinkler should be given a further opportunity to replead his case. I deal with this below.

Mr Tinkler submitted that striking out his claim would deprive him of the opportunity to demonstrate the role that the Defendants had in damaging him. The Stobart Action did not address whether the Defendants had set out to damage him by publication of the Announcement and HHJ Russen QC expressly stated that he was not trespassing on the Malicious Falsehood Action.

In response to the Defendants’ complaints about his case on damage, Mr Tinkler told me that he had experienced negative responses from banks which had previously been willing to support him. They had refused to engage with him. He said that he had lost income from his annual salary from Stobart, from lost dividend income and had lost an allocation of shares following his removal as a director. Mr Tinkler estimated that his lost contractual payment from Stobart amounted to some £500,000 per year. Mr Tinkler said that he wanted the opportunity to instruct a financial expert to prepare a report on the damage that he had suffered. He said that his life had changed. He had been publicly humiliated, and that his physical and mental health had been affected. It had also affected his family. He complained that his reputation had been “trashed” and that every news story that remains available represents a stain on his character.

In response to my asking him whether he could point to any example of instances where he had lost out on directorships or had problems with future ventures, Mr Tinkler said that he had lost an opportunity in the recapitalisation of Eddie Stobart Limited. Mr Tinkler said that he had nearly got a new investor, but that he had pulled out. This happened in December 2019, he told me.

Mr Tinkler made the simple point that it cannot be an abuse for him to continue with the Malicious Falsehood Action because HHJ Russen QC expressly stated in the Stobart Judgment that he was not “trespassing” upon issues “which are to be decided in the libel proceedings”: [787]. I accept that this is a powerful point, but, in my judgment, it does not prevent a finding that the Malicious Falsehood Action is now an abuse of process. My task is to assess what the continued litigation of the Malicious Falsehood

Issue A is whether Mr Tinkler had destabilised the board of Stobart at a crucial time for the business and whether the Defendants held the view that he did at the relevant time. This is Malicious Falsehood Meaning (a), which Mr Tinkler contends is false (see §§8.1-8.2 Re-Amended Particulars of Claim): he did not destabilise the board. The Defendants contend that this meaning is objectively true. Separately, even if Mr Tinkler established the falsity of this meaning, he would have also to establish that it was published maliciously. As Malicious Falsehood Meaning (a) has been ruled to be an expression of opinion, Mr Tinkler has to establish that the relevant Defendant, at the time the Announcement was published, did not actually hold the opinion that Mr Tinkler had destabilised the board (see [16] in the Meaning Judgment and [19] above)).

Resolving this issue in the Malicious Falsehood Action would involve relitigating a significant part of the Stobart Action and would inevitably lead to a position where Mr Tinkler would be inviting the Court to make findings of fact contrary to the facts found in the Stobart Action. To that extent, it would involve a collateral attack on the decision in the Stobart Action. To take the clearest example, Mr Tinkler’s case in the Malicious Falsehood Action on Issue A is that he “had not destabilised the board at a crucial time for the business” (§8.1 Re-Amended Particulars of Claim). In the Stobart Judgment, Mr Tinkler was found to have “foment[ed] shareholder dissatisfaction” [735] and engaged in “covert action .... [not] acting in the best interests of [Stobart]” which “had a destabilising effect upon [Stobart’s] management” [740] and led to “a situation of chaotic destabilisation within [Stobart] that Mr Tinkler had brought about” [777]. To succeed on the issue of falsity in the Malicious Falsehood Action, Mr Tinkler would be asking the Court to make a finding contrary to the finding made by HHJ Russen QC in the Stobart Action. In addition, on the issue of malice (the state of minds of the Defendants), and whether, at the date of publication of the Announcement, they held the opinion that Mr Tinkler had destabilised the board of Stobart at a crucial time for its business, to succeed in the Malicious Falsehood Action, the Court would again have to be invited to make findings contrary to findings in the Stobart Action. HHJ Russen QC found that the Four Directors: “… were justified in believing they were facing the start of an attempted coup” [777] and “considered that [Mr Tinkler’s] challenge to Mr Ferguson… was destabilising [Stobart]” [792].

Mr Tinkler – or those amending his Particulars of Claim on his behalf – appear to have recognised the difficulty. The deletion of the words that Mr Tinkler “had not acted in breach of his duties as a director of [Stobart]” from §8.1 of the Re-Amended Particulars of Claim appears to be an acknowledgement that this case cannot be maintained in the face of the Stobart Judgment. Instead, what has been inserted, in §8.1.3 is a case that Mr Tinkler “formed the view that it would be in the best interests of [Stobart] for [Mr Ferguson] to step down from his position as Director and Non-Executive Chairman of [Stobart]”. But, put simply, Mr Tinkler’s subjective beliefs are irrelevant to the Malicious Falsehood Claim. The only relevant issues are (1) objectively, did Mr Tinkler’s actions destabilise Stobart; and (2) when they published the Announcement, did the Defendants hold the opinion that they did. As I have set out, the Stobart Judgment contains relevant findings of fact adverse to

Issues B, C, D and E are relied upon by the Defendants in their Defence to demonstrate, objectively, that Mr Tinkler had destabilised the board of Stobart. Not having served a Reply, Mr Tinkler is taken to dispute all of these facts (see [25] above). The findings of fact that Mr Tinkler would be asking the Court to make in the Malicious Falsehood Action would involve impeaching the relevant findings in the Stobart Judgment identified in Appendix 2; that Mr Tinkler had not set out on a process of briefing against the board of Stobart with selected major shareholders; that he did not improperly share confidential information in the Duranta budget with Mr Day; that his conduct in writing the Shareholder Letter was not a breach of his fiduciary and/or contractual duties owed to Stobart; and that he did not orchestrate the writing of the ELT letter.

Again, the Stobart Judgment contains relevant findings of fact adverse to Mr Tinkler on all of these issues. Permitting them to be litigated again, in the Malicious Falsehood Action, would be to allow a collateral attack on the Stobart Judgment.

Issue G directly concerns the state of mind of the Four Directors at the time they published the Announcement. Mr Tinkler’s case in the Malicious Falsehood Action is set out in §§8.6-8.11. §8.12 conveniently summarises the case Mr Tinkler wishes to advance against the Defendants:

“Each of the Defendants, being directors of the Company, knew the matters referred to at paragraph 8.1-8.4 above and, accordingly, knew that the Claimant (a) had not destabilised the Board at a crucial time for the company’s business and (b) had not required (or forced) the Board to deal with the challenges listed in [39]-[43] of the Announcement (whether in the recent past or at all); the Defendants knew (as set out above) that none of the matters listed could properly be regarded as a “challenge” which the Claimant had required (or forced) the Board to address.”

The contention that the Defendants knew that the Claimant had not destabilised the board of Stobart at a crucial time for the business is essentially linked to Issue A and I have dealt with it above. Permitting Mr Tinkler to relitigate this issue in the Malicious Falsehood Action would be to allow a collateral attack on HHJ Russen QC’s contrary conclusion in the Stobart Action. Whether Mr Tinkler had presented the challenges to the board of Stobart identified in the Announcement was not an issue that required to be determined in the Stobart Action. To that extent, therefore, whether objectively Mr Tinkler had presented the identified challenges had not been the subject of any judicial finding.

Further in Mr Tinkler’s favour, it is right to note that HHJ Russen QC did hold that the Four Directors, in publishing the Announcement, had been “unwise and inappropriate” to include some of the bullet points identified as “recent challenges” that the Announcement stated had been presented by Mr Tinkler [788], and that the inclusion of matters “which were not really germane to [the] key issue for the shareholders’ vote” had been “inflammatory” [789]. These findings are consistent with Mr Tinkler’s case on the falsity of Malicious Falsehood Meaning (b) and so would not face any collateral challenge if he were permitted to continue with the Malicious Falsehood Action.

However, the Judge also found that publication of the Announcement – including as it did the alleged “recent challenges” presented by Mr Tinkler – did not represent a breach by the Four Directors of their fiduciary duties to act in good faith in the best interests of Stobart [790]-[791]. The key finding on this issue was in [792]-[793]:

This was a clear finding by the Judge in the Stobart Judgment as to the state of mind of the Four Directors when they published the Announcement. It was not an incidental finding. It was a finding made, against Mr Tinkler’s submissions, on a component part of Issue 4 in the Stobart Claim. On the issue of honesty of belief and/or whether, by publishing the Announcement, the Defendants had a dominant intention to injure Mr Tinkler, he would again have to invite the Court in the Malicious Falsehood Action to make findings of fact that would be inconsistent with the findings made in the Stobart Action.

The remaining issues (H to N) in Appendix 2, I can deal with more shortly, as they are really subsidiary to the main issues that I have already addressed.

Mr Tinkler submitted that, as the Stobart Action was brought by the company and the Malicious Falsehood Action is brought against the directors personally, the Malicious Falsehood Action is not duplicative. The above analysis shows that this submission must be rejected. It is a distinction without any substance. So far as concerns publication of the Announcement, Mr Tinkler is complaining about precisely the same acts in the Malicious Falsehood Action as he did in the Stobart Action. The only difference is that in the Stobart Action, the company was being held vicariously liable for the actions of the Four Directors and in the Malicious Falsehood Action he seeks to establish personal liability of the Four Directors plus Mr Laycock. The fact that the directors had no direct financial interest in the outcome of the Stobart Action and were not themselves likely to be at risk of any third-party costs order is not material. Nor does it matter that the Malicious Falsehood Action was commenced before the Stobart Action (see [41] above).

I accept that there might be certain limited issues that would arise in the Malicious Falsehood Action which were not resolved in the Stobart Action. Principally, as I have noted, the truth or falsity of Malicious Falsehood Meaning (b) was not an issue in the Stobart Action. Also, there might be scope for subtle differences in the states of mind of the Defendants. In the Stobart Action, the issue was whether, when the Four Directors published the Announcement, they were acting bona fide in the best interests of the company. In the Malicious Falsehood Action, the question would be whether

For the reasons I have set out above, permitting Mr Tinkler to proceed with the Malicious Falsehood Action would involve the Court permitting him to relitigate a large number of the issues that were raised (and adjudicated upon) in the Stobart Action and Judgment. In almost all of those instances, Mr Tinkler would be making a collateral attack to findings of fact made in the Stobart Judgment. The case that Mr Tinkler wants to advance in the Malicious Falsehood Action could, and in my judgment, should have been brought in the Stobart Action.

I am conscious that this may strike Mr Tinkler as unfair, particularly as HHJ Russen QC purported to leave this claim untouched by the Stobart Judgment. Nevertheless, HHJ Russen QC’s observation that he was not trespassing upon matters which were to be decided in the Malicious Falsehood Action ([787]) was not a considered conclusion on the impact of the Stobart Judgment on the Malicious Falsehood Action. It has fallen to me to have to make that assessment after detailed submissions. At no earlier stage has the Court been asked to address what was going to happen with the Malicious Falsehood Action after the Stobart Action had been tried. In particular, the Court was never asked, by any party, to decide whether the two Actions should be consolidated, or the Actions tried together. By the time I heard the preliminary issue of meaning in the Malicious Falsehood Claim on 17 December 2018, the Stobart Action had already been tried and judgment had been reserved. Perhaps understandably, and possibly a reflection of which Action they considered to be more important, the parties concentrated their efforts and resources on securing an expedited trial for the Stobart Action. But, throughout this period, all parties were represented by experienced firms of solicitors and Counsel and the Aldi guidelines are very clear.

For the reasons I have explained, the Stobart Judgment does trespass upon matters that would fall to be determined in the Malicious Falsehood Action. Given that the propriety of publishing the Announcement was squarely in issue in the Stobart Action, it is perhaps surprising that the issue went unaddressed by the parties. HHJ Russen QC can hardly have been expected to have identified the potential issues that have now come into sharp focus, particularly given, as I have already noted, the Stobart Action had already been tried by the time of the first hearing in the Malicious Falsehood Action. The Defence in the Malicious Falsehood Action was not served until 8 October 2019. Further, the Malicious Falsehood Action has shifted from being, principally, a claim for libel with an additional claim for malicious falsehood, to being solely a claim for malicious falsehood.

In fairness to Mr Tinkler, it cannot be said that he did not lay his cards clearly on the table. He had commenced the Malicious Falsehood Action a week before the Stobart Action. All parties were aware of the two Actions. The Court was also aware of both Actions. However so far as concerned Mr Tinkler, as noted in the passage from a judgment of Sedley LJ quoted in Clutterbuck [77], “putting his cards on the table does not simply mean warning the [other side] that another action is or may be in the pipeline. It means making it possible for the court to manage the issues so as to be fair to both sides.” Likewise, the observations of Sir Anthony Clarke MR [78] that “the time for such a decision to be taken is before there is a trial of any of the issues”. For whatever reason, it was not.

Whatever can be said about the history, it is plain the parties were content to seek, and to commit their (and the Court’s) resources to, an expedited trial in the Stobart Action and to allow the Malicious Falsehood Action to trail along, at some distance, in its wake. Given what was objectively in issue and at stake in the two Actions, the analogy is perhaps one of a dinghy, being towed on a long rope behind a super tanker. I do not, by that analogy, intend to belittle Mr Tinkler’s claim in the Malicious Falsehood Action, but if it was as important to him as he now contends, it should have received rather more attention than it received and it certainly needed to be addressed before the Stobart Action was tried if the position which now confronts Mr Tinkler was to be avoided. The fact that the Defendants, themselves, did not seek the Court’s direction about what should happen to the Malicious Falsehood Action is a factor, but it is not determinative. It does not, in this case, outweigh the public interest in the efficient use of court resources and avoiding duplicative litigation.

My conclusion is that continued litigation of the Malicious Falsehood Action would be an abuse of process. It would now represent a collateral attack on key findings in the Stobart Action. Given the overlap in issues in relation to publication of the Announcement between the two Actions, the Malicious Falsehood Action could, and should, either have been brought by Mr Tinkler either as part of his counterclaim in the Stobart Action or the two Actions ought to have been tried together.

The public interest also required that all issues that related to publication of the Announcement be tried, so far as possible, in one set of proceedings. Permitting the Malicious Falsehood Action to proceed would also risk producing conflicting judgments. I do not know the scale of the costs incurred by the parties in the Stobart Action, but they must have been substantial. Allowing the Malicious Falsehood Action to proceed all the way to a contested trial (and objectively judged there would appear to be little prospect of any earlier settlement) raises the spectre of precisely the duplication of substantial costs and effort that the doctrine of abuse of process exists to prevent. The five defendants, three of whom have long since left Stobart, would face having to go through another trial, which in all probability would not take place until 2021. But it is not only the parties’ resources, it is the scarce resources of the Court that would also be taxed twice. That is one of the reasons why the Aldi guidelines exist. Parties who do not follow them risk subsequent litigation being struck out as an abuse of process. The warnings, for example in Clutterbuck, could not be clearer. They were not followed in this case. The Malicious Falsehood Action will be struck out.

Given my finding, it is not strictly necessary for me to consider the other bases on which the Defendants sought the dismissal or stay of the Malicious Falsehood Action. However, as I have heard full argument on the points, and in case I were wrong to strike out the Malicious Falsehood Action on the basis I have, I will shortly set out my decision on the other grounds.

I will deal with these together given the substantial common issue is Mr Tinkler’s case on damage.

I am persuaded that Mr Tinkler’s pleaded case on the publication of the Announcement being likely to cause him pecuniary damage should be struck out on the grounds that it does not disclose a properly arguable case.

The starting point is that the Court must not, in setting the requirements for a plea relying upon s.3(1) Defamation Act 1952, effectively compel a claimant to provide evidence of special damage. As made clear in Joyce -v- Sengupta, s.3(1) was specifically enacted because it was recognised that claimants may struggle to prove special damage arising from a publication. I consider that the Defendants’ attempts to obtain from Mr Tinkler details of specific investment opportunities he claims to have lost as a result of publication of the Announcement are effectively seeking details of a claim for special damages.

Nevertheless, Mr Tinkler’s pleaded case for how the publication of the Announcement was more likely than not to cause him pecuniary damage has several flaws:

Mr Tinkler’s pleaded case is vague and speculative and consists entirely of generalities. Against the very real problems he confronts in relation to causation, it will not do. But even if the causation issue is ignored, Mr Tinkler’s pleaded case still does not explain how an allegation that he had destabilised the board of Stobart and had presented a series of challenges to the board is more likely than not to cause him pecuniary damage. In a case like Joyce -v- Sengupta it is obvious how an allegation that an employee had stolen her employer’s confidential correspondence and handed it to a national newspaper is likely to cause the claimant pecuniary damage: the claimant would be likely to be unemployable in consequence. The less obvious is the statement’s capacity to cause pecuniary damage, the greater the practical obligation to set out a clear explanation in the statement of case as to how it is likely to have done so.

Ordinarily, where the Court strike out part of a party’s statement of case, the Court will consider whether the party ought to be given a further opportunity to replead his case. I have considered whether Mr Tinkler should be given such an opportunity, but I have concluded that he should not. As I have set out above, the damage claim that he advanced has been under sustained attack by the Defendants since May 2019. Mr Tinkler has had it made clear to him – even now that he is acting in person – what is required. I am satisfied that, if he did have a case with a realistic prospect of demonstrating a likelihood that publication of the Announcement has caused him pecuniary damage, he has had the fullest opportunity to present it. There is no real prospect, if the Court were to give him further time and another opportunity, that the position would improve. Mr Tinkler cannot demonstrate that publication of the Announcement either caused him special damage or that it was likely to cause him pecuniary damage. Without that, he does not have an arguable claim for malicious falsehood. The time has come for the Court, and Mr Tinkler, to recognise that. I would have struck out the Malicious Falsehood Action on this ground as well.

In light of my finding these two separate bases on which the Malicious Falsehood Action should be struck out, it is not necessary for me to deal with the argument that the Malicious Falsehood Action is also an abuse of process under the Jameel principle. In this case, the argument why the claim is now Jameel abusive is so bound up with the overlap with the Stobart Action, that it is not likely to be helpful for me to express a concluded view, which would necessarily be obiter. If I am wrong about the Malicious Falsehood Action being an abuse of process on the grounds that it represents re-litigation of, or a collateral attack on, the Stobart Action and Judgment, then that would have a significant impact on the Court’s assessment of whether the game would be worth the candle.

It is also not necessary for me to determine the discrete challenge by Mr Laycock to the case of malice made against him, but given the seriousness of a plea of malice it is right for me to record that, in my judgment, Mr Tinkler’s case of malice against Mr Laycock was inadequate and speculative. This is, perhaps, a reflection of the fact that Mr Tinkler never really had Mr Laycock in his sights as one of those who had wronged him (see [28] above) . Mr Tinkler appears to have advanced a case of malice against Mr Laycock opportunistically and because it was expedient. After he abandoned the defamation claim, he had to do so to maintain any claim against Mr Laycock.

The Claimant has not acted in breach of his duties as a director of the Stobart Group nor hashe deliberatelyhad not destabilised the board at a crucial time for the business, whether as alleged in the Announcement or at all. In fact, the Company’s continuing success has alwaysbeen at the forefront of the Claimant’s actions as evidenced by (among other things):

Further, the Claimant’s opposition to the First Defendant continuing as Chairman of theCompany was based on his view of what was in the best interests of the Company.TheClaimant has not acted selfishly or for self-interested reasons nor is he seeking to protect hisown position. Paragraph 8.1 above is repeated. In fact:

The Claimant has been a successful manager of both the Company and Stobart Capital andwas not guilty of any improper conduct whilst CEO of the Company. In fact, under theClaimant’s leadership as CEO of the Company (among other things):

Further, the Claimant hads not required (nor had he forced) the Board to address unwarranted challenges whether as alleged or at all. In fact, as the Defendants knew, none of the bulletpoints listed under the heading “Mr Tinkler” can or could properly be described as“challenges” posed by the Claimant and/or as matters the Board had been required or“forced” by him to address. Further, although not included specifically in the Judge’sformulation of the available meanings (see paragraph 8 above), as the Defendants knew, itwas false to describe the matters referred to in [39-43] of the Announcement as being and/orto be “in the recent past” (see [38] of the Announcement). Using the same sub-headings as in the Announcement under the section headed “Mr Tinkler”:

The Claimant has not repeatedly shown himself to be so lacking in integrity that he is unfitto hold the office of company director. The Claimant repeats and relies upon the matters setout above.

Paragraphs 8.1, 8.2toand 8.4 above are repeated. The Announcement was published by the Defendants and each of them as part of a concerted unlawful campaign against the Claimant (“the Campaign”), the dominant improper purposes of which were (among other things) to:

secure the re-election of the First Defendant as Chairman at the forthcoming Annual General Meeting on 6 July 2018 (“the AGM”) by whatever means necessary; and/or

The Claimant has publicly stated his opposition to the re-election of the First Defendant who he believed wass is unfit to continue as Chairman of the Company. The vote is due to taketook place at the AGM on 6 July 2018. In contrast, the Defendants and each of them arewere all in favour of the First Defendant’s re-election and the Third and Fifth Defendants have publicly stated (not least in the Announcement itself) that they willwould resign from the Board if the First Defendant iswas not re-elected.

As is evident from the terms of the Announcement and the manner of its publication, it was deliberately designed by the Defendants and each of them to cause damage to the Claimant’s reputation, as was the case.

By email at 23.32 on 28 May 2018 (a Bank Holiday), the Fourth Defendant sent a copy of the draft Announcement to the Claimant (and other members of the Board), stating that “it will be released to RNS at 7am tomorrow morning”.

By letter dated 30 May 2018 the Claimant asked (among other things) that the Defendants release a further Announcement apologising for and withdrawing the statements made. No such apology or withdrawal has been forthcoming and the Announcement still remains publicly available (unamended) on the RNS website and on the Company’s website as set out at Paragraph 4 above. A hyperlink to the Announcement has also beenwas also included in the letter from the Fifth Defendant to the shareholders as part of the AGM documents provided on 25 June 2018.

Further, the Claimant will rely upon the following facts and matters as yet further evidence of the Campaign against him as set out at 8.56 above. The Defendants were, in January andFebruary 2018, extremely keen “to get [the Claimant] off the Board” of the Company, asshown by the following:

The publication of the False Statements in the Announcement was calculated to cause pecuniary damage to the Claimant in respect of his office, profession, calling and/or trade as a company director and businessman.

As a result of the publication set out above, the Claimant has suffered loss and damage including serious damage to his reputation and substantial embarrassment and distress. Thepublicationis self-evidently extremely grave andof the Defamatory Statements has causedand/or is likely to cause serious harm to the Claimant’s reputation; theThe publication of theFalse Statements was intended and/or likely to cause him pecuniary loss.If and insofar asnecessary, tThe Claimant will rely upon the facts and matters set out below.

The Claimant will rely in particular upon the following facts and matters in support of his claim for general and/or aggravated damages:

Appendix 2: Annex to the Application Notice