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England and Wales High Court (Chancery Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tinkler & Anor v Invesco Asset Management Ltd & Ors [2025] EWHC 1596 (Ch) (11 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/1596.html
Cite as: [2025] EWHC 1596 (Ch)

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Neutral Citation Number: [2025] EWHC 1596 (Ch)
Case No: BL-2024-000750

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
11 June 2025

B e f o r e :

Mr Justice Leech
____________________

Between:
Andrew Tinkler & Anor.
Claimants

- and –


(10) Invesco Asset Management Ltd
(12) Frederick Bouverat
(16) Orbitus Trustees (Guernsey) Ltd
(19) Stifel Nicolaus Europe Ltd
Defendants

____________________

Mr J King appeared on behalf of the Claimants.
Mr A Temple (instructed by Simmons & Simmons LLP) for the Tenth and Twelfth Defendants.
Mr C Catsambis (instructed by Baker & McKenzie LLP) for the Sixteenth Defendant.
Mr A Gledhill & Mr T Lau (instructed by Ashurst LLP) for the Nineteenth Defendant.

Hearing date: 10 June 2025

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mr Justice Leech:

  1. By Application Notice dated 16 May 2025, the Claimant, Mr Andrew Tinkler, applies to stay this action pending the outcome of an investigation by the Takeover Panel to which I will refer as the "Panel". In the interests of time, I will not set out the background to the action or a detailed procedural history, be it what is necessary to make sense of this judgment, but both are familiar to me from the judgments which I handed down on 7 June 2022 and 17 June 2024. Although a number of parties were named in the Claim Form, it was only served on four of them to whom I will refer as "Active Defendants". They were the 10th Defendant, Invesco Asset Management Ltd, the Twelfth Defendant, Mr Frederic Bouverat, the Sixteenth Defendant, Orbitus Trustees Guernsey Ltd, and the Nineteenth Defendant, Stifel Nicolaus Europe Ltd. A brief chronology for the purposes of this judgment are as follows.
  2. (1) On 21 July 2023 Mr Tinkler wrote to the Panel apparently in response to a review which it was carrying out. In his letter, he referred to submissions which he had made on the same day in relation to alleged breaches of Rule 9 of the Takeover Code (the "Code").

    (2) On 6 and 7 February 2024 Mr Tinkler sent Letters of Claim to the Active Defendants alleging an unlawful means conspiracy. In the last paragraph of his letter to the Nineteenth Defendant he stated that he was confident that there was no defence to the allegations (although he was prepared to engage in ADR).

    (3) On 23 May 2024 Mr Tinkler issued the Claim Form and on 23 September 2024 it was served on the Active Defendants.

    (4) On 20 November 2024 Ashurst served an Application Notice applying to strike out the claim form on behalf of the Nineteenth Defendant. On 3 December 2024 Baker & McKenzie followed suit on behalf of the Sixteenth Defendant and on 4 December 2024 Simmons & Simmons served an Application Notice to strike out the Claim Form on behalf of the Tenth and Twelfth defendants.

    (5) On 27 February 2025 Mr Tinkler wrote to the Panel again. In that letter, he referred to submissions which he had sent to the Panel on 18 September 2023. On 22 April 2025 he wrote again to the Panel, again this time to highlight "material omissions" in a letter dated 17 April 2025 because it had failed to address critical evidence from submissions made to it on 9 August 2018 and 20 August 2018, some seven years earlier.

    (6) On 16 May 2025 Mr Tinkler issued the Application Notice for a stay. The three strike-out applications have been listed before me for some time in a window this week and after Mr Tinkler writing to the Chancellor, I agreed to list the stay application immediately before the hearing of the strike-out applications.

    (7) I heard the stay application yesterday on the afternoon of 10 June 2025, and before the parties had made any submissions in relation to the merits of the strike-out applications.

  3. I turn next to the evidence. Mr Tinkler made two witness statements in support of the stay application dated 16 May 2025 and 5 June 2025 to which I will refer as "Tinkler 2" and "Tinkler 3". His evidence was that the court's determination of the strike-out applications was likely to be materially influenced by the outcome of the Panel's investigation. It was also his evidence that there was a very significant overlap between the issues which arise in this action and the Panel's investigation. Mr Jonathan D King who appeared on behalf of Mr Tinkler placed particular reliance on Tinkler 2, paragraph 15:
  4. "By way of summary only, I note as follows:
    a. My contention that Invesco (D10), Stifel (D19), and others concealed a concert party in submissions to the Takeover Panel (see paragraph 40.4 of the Particulars of Claim) and that D10 (Invesco) instructed Stifel (D19) to submit misleading concert party disclosures on Stifel's letterhead to hide D10's involvement (albeit that ultimately was not sent on headed paper, but instead with a cover email which gave the impression that it was sent on behalf of D19) overlap with my contention that the Applicants engaged in concert party activity before the AGM and after the AGM contrary Rule 9.1 of the Takeover Code.
    b. My allegations within the Current Claim as to improper transfers of treasury shares to the EBT to manipulate AGM voting (see paragraph 75.8 of the Particulars of Claim), overlap with my complaints as to 'frustrating action' under Rule 21.1.
    c. My allegations that the erroneous and misleading 29 May 2018 RNS announcement was used to influence shareholder voting (see paragraph 39 of the Particulars of Claim) overlap with my complaint that the Takeover Panel was provided with misleading submissions in June 2018.
    d. My complaint to the Takeover Panel includes a complaint about the manipulation of the vote at and in connection with the AGM."
  5. Mr Tinkler then set out seven paragraphs dealing in detail with his complaints in relation to the AGM, which I will not repeat in this judgment. Mr Tinkler explained that he had made the application because of the recent correspondence which served to confirm that the Panel investigation was actively progressing but that it would not be concluded before the hearing of the strike-out applications. He also gave evidence that he was likely to suffer substantial and, as he put it, irremediable prejudice if the strike-out applications were heard and granted before the conclusion of the investigation because he would be deprived of a judicial remedy and if the findings and outcome revealed that the active defendants were liable on the basis of the present claim. In Tinkler 3, Mr Tinkler was unable to state when the investigation would be concluded, but stated that it was an active and ongoing one and that the Panel had indicated that it would be completed in due course.
  6. In relation to the timing of the stay application itself, he stated that he had been interviewed by the Panel on 12 November 2024. He also referred to the letters which he had received from the Panel on 17 April 2025 and 24 April 2025, which are not in evidence (or at least to which I was not taken) and he then stated as follows in paragraphs 24 and 28:
  7. "24. This exchange demonstrated for the first time that the Panel was taking forward a full investigation into the matters raised. It also confirmed that the Panel had lacked sufficient evidence in November 2024 to escalate the matter to its Hearing Committee at that earlier stage."
    "28. In turn, it is my position the application for a stay was made promptly once it became clear that the Panel had commenced a substantive investigation in response to my evidence, and once it was apparent that the investigation was both ongoing and unlikely to be concluded prior to the hearing of the Applications in June 2025. Conversely, it is my position that it would have been both unrealistic and indeed inappropriate for me to apply sooner, given both the uncertainty as to how (if at all) the Takeover Panel would further progress the matter, and whether any such investigation as might be taken would be concluded prior to the June 2025 hearing in any event."
  8. I turn next to the law. Mr Andreas Gledhill KC, who appeared for the Nineteenth Defendant, cited the decision of the Court of Appeal in Athena Capital Fund v Secretariat of the State for Holy See [2022] EWCA Civ 1051, [2022] 1WLR 4570 and Mr Tinkler did not dispute that it accurately stated the law. In Athena the Court of Appeal settled a dispute in the authorities about whether it was necessary for an applicant to demonstrate exceptional circumstances before the court will grant a stay in relation to parallel proceedings. Males LJ stated as follows at [59]:
  9. "There is, as it seems to me, no reason to doubt that it is only in rare and compelling cases that it will be in the interests of justice to grant a stay on case management grounds in order to await the outcome of proceedings abroad. After all, the usual function of a court is to decide cases and not to decline to do so, and access to justice is a fundamental principle under both the common law and article 6 ECHR. The court will therefore need a powerful reason to depart from its usual course and such cases will by their nature be exceptional. In my judgment all of the guidance in the cases which I have cited is valuable and instrctive, but the single test remains whether in the particular circumstances it is in the interests of justice for a case management stay to be granted. There is not a separate test in 'parallel proceedings' cases. Rather, considerations such as the existence of an exclusive English jurisdiction clause and the danger of circumventing a statutory scheme for the allocation of jurisdiction (such as the Judgments Regulation) will be weighty and often decisive factors pointing to where the interests of justice lie."
  10. Mr Gledhill also pointed out that the present case is unusual because it is the claimant applying for a stay rather than the active defendants. He had relied on the decision of Gloster J (as she then was) in Klöckner Holdings GmbH v Klöckner Beteiligungs GmbH [2005] EWHC 1453 (Comm) where the judge stated at [21] that the relevant factors which guide the court in the exercise of its discretion are as follows (and, for convenience, I omit the references):
  11. "(i) The court has a wide discretion to stay proceedings, but in circumstances where the claimant itself has voluntarily brought the two sets of proceedings, a stay should only be granted in very rare circumstances ...
    "(ii) Even where there are such reasons for a stay, a stay should only be granted if the benefit of doing so clearly outweigh any disadvantage to the other party ...
    "(iii) A particularly compelling case would be required for a stay to be granted to the claimant years after he has brought the claim ...
    "(iv) A stay will not, at least in general, be appropriate if the other proceedings will not even bind the parties to the action stayed, let alone finally resolve all the issues in the case to be stayed.
    "(v) A stay will not, at least in general, be appropriate if the parties to the other proceedings are not the same;
    "(vi) A Defendant against whom a serious allegation (such as deceit) is made is entitled to an expeditious hearing, and should not be left for years waiting for the outcome of another case over which he (and the Court) has no control. An action alleging fraud should come to trial quickly; thus unwarranted delay may lead to an action being dismissed for want of prosecution even before the limitation period has expired ..."
  12. Mr Gledhill did not place any particular reliance on principle 4 and accepted that it was probably no longer good law, but he placed reliance on the other principles and, in particular, principle 6. In my judgment, the interests of justice do not favour a stay, and this is not a rare and compelling case which would justify a stay of proceedings until the Panel has completed its investigation and reached a decision. In the exercise of the court's discretion, therefore, I refuse to grant a stay and I do so for the following reasons.
  13. (1) The application was made very late. I accept Mr King's submission that Mr Tinkler had to issue and serve the Claim Form to avoid the claim being barred by limitation. I also accept his submission that it was unlikely that the Active Defendants would have agreed to enter into standstill agreements. But Mr Tinkler could have sought the consent of the Defendants to a stay immediately on service, and if they failed to agree, applied to the court then.

    (2) For the purposes of this application at least, I am prepared to accept Mr Tinkler's evidence that he has only recently become sure that the Panel was undertaking an active investigation and I am not prepared to accept the Active Defendants' submission that the stay application was a cynical ploy to derail the strike-out applications. But the consequence of the lateness of the application is that I am faced with a binary choice whether to grant the stay application or to hear the strike-out applications.

    (3) Faced with that choice, I might have been prepared to grant a stay for a short period of time, say three or even six months, if a decision of the Panel was imminent. But I am not prepared to grant an open-ended stay. There was some debate about the procedure which the Panel might adopt, but I cannot be satisfied that it will be completed within a year or even two years.

    (4) I am not satisfied that there is a very significant overlap between the issues which arise in this action and those which arise in the Panel's investigation. Mr Adam Temple, who appeared for the Tenth and Twelfth Defendants, pointed out that Mr Tinkler's complaint to the Panel is that the four directors of SGL (as it was then called) concealed a concert party from the Panel and failed to comply with Rule 9: see Tinkler 2, paragraph 15 (above). But the allegation against the Active Defendants in this action is that they conspired to take control of SGL by making misleading submissions to the Panel, namely, that Mr Tinkler himself was acting in breach of Rule 9 of the Code. Indeed, the only reference in the Particulars of Claim to the directors acting in breach of Rule 9 is a brief reference in paragraph 40.4.

    (5) It is common ground that the findings of the Panel are not binding on this court under the rule in Hollington v Hewthorn. I accept that further evidence may come out in the course of the Panel investigation or upon which the Panel relies, which is directly relevant to the issues in the present action. But if those documents are in the possession or control of the Active Defendants and this action continues, they will be under an obligation to disclose those documents in this action in any event. Moreover, in hearing the strike-out applications, the court is entitled to have regard to the documents which may come out on disclosure, particularly in a conspiracy claim.

    (6) Mr Tinkler is not firing blind. The directors have already given disclosure in two heavily contested actions and I have had the advantage of considering that evidence and data, both on a contested specific disclosure application and at trial.

    (7) I am not satisfied that Mr Tinkler will be deprived of a remedy if I refuse to grant a stay. Mr King took me to a Panel decision which shows that the Panel was able to award compensation assessed by reference to common law principles for a breach of Rule 9. If Mr Tinkler's complaint to the Panel is successful, it has power, therefore, to award him compensation. Moreover, Rule 9 requires a concert party holding more than 30% of the shares to make an offer to purchase the remaining shares in the company. But, as Mr Temple submitted, this is not Mr Tinkler's complaint in this action. His complaint is that the four directors conspired to take control of SGL by ignoring the wishes of the other shareholders, removing him as a director and then manipulating the outcome of the AGM. The very last thing in the world which he would have wanted to do was to sell his shares to them.

    (8) I am not satisfied, therefore, that Mr Tinkler will suffer substantial prejudice if I refuse a stay, far less that it will be irremediable. But even if I had been satisfied that Mr Tinkler would suffer material prejudice, I would still have refused a stay and for the reason submitted by Mr Gledhill. His primary submission was that it was only appropriate to stay the action if I were satisfied that it was properly brought in the first place. I accept that submission. If, as the Active Defendants submit, the claim is abusive and represents a collateral attack on a number of prior judicial decisions (including two of my own decisions) then the court should strike it out and the Active Defendants should not be vexed by it. Furthermore, if Mr Tinkler has committed breaches of CPR part 31.22 by initiating the Panel investigation, as Mr Gledhill also submitted, then he should not be permitted to use the Panel's investigation itself as a means of avoiding the court's scrutiny.

  14. In my judgment, the last factor is the decisive one in the present case. If this is an abusive claim, it should be dismissed, not stayed. But I reach the same conclusion applying the principles set out by Mrs Justice Gloster in Klöckner (apart from principle (iv)). A serious allegation has been made against the Active Defendants, and they are entitled to an expeditious hearing and the determination of the strike-out applications which should not be left for potentially years awaiting the outcome of the Panel investigation. Mr King relied on the fact that Mr Tinkler had to issue and then serve the Active Defendants because the limitation period was about to expire. But in my judgment, that is a point in the Active Defendants' favour and against Mr Tinkler. This is a stale claim and it should be resolved as soon as possible. For these reasons, therefore, I dismiss Mr Tinkler's application dated 16 May 2025 and I will now proceed to hear the strike-out applications.
  15. __________

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