McGill v The Sports and Entertainment Media Group & Ors, Court of Appeal - Civil Division, November 04, 2016, [2016] WLR(D) 571,[2016] EWCA Civ 1063

Issuing Organization:Civil Division
Actores:McGill v The Sports and Entertainment Media Group & Ors
Resolution Date:November 04, 2016
 
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Case No: A3/2014/3398

Neutral Citation Number: [2016] EWCA Civ 1063

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

MERCANTILE COURT

HHJ WAKSMAN QC

CLAIM NO: 3MA 40026

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/11/2016

Before:

LORD JUSTICE LLOYD JONES

and

MR JUSTICE HENDERSON

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Between:

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Mr Charles Douthwaite (instructed by C J Jones Solicitors LLP) for the Appellant

Mr Edward Bartley Jones QC (instructed by Richard Slade and Company) for the Respondents

(Neither counsel, nor their instructing solicitors, appeared below)

Hearing date: 12 October 2016

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JudgmentMr Justice Henderson:

Introduction and background

1. Gavin McCann (``Mr McCann'' or ``the Player'') is a former professional footballer. On 7 June 2007, at a time when his career in the Premier League was nearing its end and his existing contract with Aston Villa Football Club (``Aston Villa'') had about one year left to run, terms were agreed for Mr McCann's transfer to Bolton Wanderers Football Club (``Bolton'') for a transfer fee of £1 million plus VAT. Bolton also agreed to pay an agent's fee of £300,000 to the Sports and Entertainment Media Group (``SEM''), the first defendant in the present action, pursuant to an agency contract between Bolton and SEM which was dated 1 June 2007 but not signed until 8 June. The remainder of the formal paperwork relating to the transfer was signed on 11 June 2007.

2. The Chairman of Bolton, Philip Gartside, described the transaction at the time as one of the easiest deals he had ever done.

3. The claimant and appellant, Anthony (Tony) McGill, is, and at all material times was, a licensed football agent. His basic complaint, pursued by him with dogged, if intermittent, persistence since 2007, is that in April of that year he made a binding oral agreement with the Player to act as his exclusive agent so as to get him a new contract, whether with Aston Villa or a new club, before the end of the then current transfer window on 31 August 2007.

4. Acting for the Player under this oral contract, Mr McGill says that he then put together a deal for the transfer of the Player to Bolton, which Bolton indicated it would in principle be willing to accept. At that stage, however, SEM (which also provided agency services) found out about the proposed deal from the Player, and (as Mr McGill alleges) induced the Player to breach his contract with the claimant by dispensing with his services, thus enabling SEM to take over the proposed deal and finalise it on essentially the same terms as Mr McGill had already negotiated. In this way, SEM obtained an agent's commission of £300,000 from Bolton when the deal completed, without having had to do any real work to earn it. Conversely, Mr McGill was deprived of the similar fee which he says he could have expected to earn upon completion of the deal had his contract with the Player been allowed to run its course.

5. There is a further complication, however, which it is convenient to introduce at this early stage. Under the Football Agents Regulations made by the Football Association (``the FA'') which took effect on 1 January 2006 (``the 2006 FA Regulations''), any representation contract between a licensed agent and either a club or a player had to be made in a standard written form containing the entire agreement between the parties, and the agent was obliged to ensure that a copy of this document was provided to the club or player before providing any of his services under the contract. It follows from these provisions that the alleged oral contract upon which Mr McGill relies was made in clear, indeed blatant, contravention of the 2006 FA Regulations, and would have been unenforceable in any forum governed by the Regulations, including any arbitration under the auspices of the FA. It also follows that Mr McGill would in practice have been unable to obtain payment of any fee due to him under the oral contract, unless and until the position was regularised by his entry into a written agreement which complied with the Regulations; and, even then, any enforceable right to payment of a fee would derive from the written agreement itself, not from the prior oral contract.

6. On the other hand, as counsel for Mr McGill rightly reminded us, the 2006 FA Regulations had no statutory force. In law, they are no more than the rules of an unincorporated association, by which its members (and anybody else who agreed to abide by them) were contractually bound.

7. Against this background, Mr McGill began by making a number of complaints to the FA, but these did not result in the FA taking action against anyone. On 20 November 2007, Mr McGill then started proceedings against the Player alone in the Newcastle County Court, seeking damages for breach of contract and other relief. This action (``the 2007 Action'') was subsequently transferred to the Queen's Bench Division of the High Court, in the Mercantile Court list at Manchester. In his particulars of claim, which were settled by counsel, Mr McGill sought in various ways to enforce the provisions for remuneration in his oral contract with the Player, or to obtain damages for their breach, and in the alternative payment on a quantum meruit basis of a reasonable sum for the services which he had provided to the Player. The action was defended on grounds which included a denial that the oral agreement had been entered into, a denial of any intention to create legal relations, a contention that any alleged agreement was void for uncertainty, and denials that Mr McGill had ever been requested to provide, or had provided, any services to the Player.

8. The trial of the 2007 Action was due to start on 7 September 2009, but it was settled on that day by a Tomlin order whereby the Player agreed to pay Mr McGill £50,000 in full and final settlement of all claims arising out of the matters set out in the statements of case in the action, including any outstanding orders as to costs. Mr McGill was willing to settle on this basis, even though (according to him) his own legal costs were by then around £155,000.

9. There matters rested until nearly three years later, on 26 July 2012, Mr McGill started the present action (again in Newcastle, although it was subsequently transferred to the High Court in Manchester). There were nine defendants, falling into two groups, which I will call ``the SEM defendants'' (1 to 4), and ``the Bolton defendants'' (5 to 9). The first defendant was SEM itself. The other SEM defendants were Jerome Anderson (who was the CEO of SEM at the time), Jeffrey Weston (another licensed football agent, employed by SEM) and David Sheron (who was also employed by SEM, although not a licensed agent). Mr Sheron had been a personal friend of the Player's since about 1995, when the Player was playing for Everton. Mr Sheron had a central role in the events which led up to the dismissal of Mr McGill by the Player, and the subsequent conclusion of the deal with Bolton, even though (being unlicensed) he could not himself legitimately act as the Player's agent.

10. The fifth defendant was Bolton, the other Bolton defendants being Mr Gartside, Simon Marland (Bolton's club secretary), Samuel Lee (Bolton's then manager), and Frank McParland (Bolton's general manager).

11. The causes of action pleaded by Mr McGill against the defendants were, in summary, as follows:

(1) inducing a breach of contract (as against SEM, Mr Sheron, Bolton and Mr McParland);

(2) breach of confidence (as against SEM and Bolton);

(3) conspiracy to injure (as against all the defendants);

(4) conspiracy to use unlawful means (as against all the defendants);

(5) unlawful interference with the actions of the Player (as against all the defendants);

(6) quantum meruit (as against Bolton); and

(7) a restitutionary claim (as against SEM) based on SEM's alleged unjust enrichment.

12. These claims were all vigorously denied by all the defendants. The SEM defendants and the Bolton defendants were separately represented, although there was no separate representation within each group of defendants.

13. The trial of the action took place before His Honour Judge Waksman QC, sitting as a judge of the High Court, over eight days between 7 and 22 April 2014, with final submissions being made on 5 June 2014. The judge handed down his written judgment on 15 September 2014. He found that none of Mr McGill's various claims had been made out, so the action was dismissed in its entirety. The judge was very critical, however, of much of the evidence given by the defendants and their witnesses, and he concluded that they had fabricated some key events in a misguided attempt to improve their position. Taking these matters into account, he ordered Mr McGill to pay only 30% of the costs of the SEM defendants, and 80% of the costs of the Bolton defendants, for the detailed reasons which he gave in a judgment on costs delivered, after his main judgment had been handed down, on 24 September 2014.

14. Mr McGill's claims which came closest to success were those for inducement of breach of contract, as against SEM and Mr Sheron, and for unlawful means conspiracy, as against all the SEM defendants. In respect of these claims, the judge was satisfied that all the ingredients of the causes of action were made out apart from causation and loss. The judge held that all of the other economic tort claims failed for one or more additional reasons, apart from the failure on causation and loss which was common to all of them. Furthermore, in relation to the claim for unlawful means conspiracy, the only unlawful conduct which the judge found to be established as against the SEM defendants was the inducement of breach of contract for which Mr Sheron was directly, and SEM vicariously, liable. In those circumstances, the conspiracy...

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