Tag Archives: case

Robert Dee, dubbed the “World’s Worst Tennis Player” loses…..his libel case against the Daily Telegraph

November 22, 2010

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Read the Full case report: http://www.bailii.org/ew/cases/EWHC/QB/2010/924.html

and the Daily Telegraph article about the case: http://www.telegraph.co.uk/sport/tennis/7644181/Worlds-worst-tennis-player-loses-again.html

Robert Dee’s own website contains an extraordinary collection of 40 apologies, corrections and reports from Newspapers that printed the same story as the Daily Telegraph but ultimately settled or offered apologies: http://www.robertdee.org/apologies_and_corrections (indeed he even goes as far as scanning onto the website the cheque for £12,500 that he received from the BBC in damages!)

The case concerns an article published in the 23rd April 2008 Daily Telegraph about Robert Dee, a 23yr old British Tennis Professional. The article suggested on both a paragraph on the front page and on the back page of the sports supplement that Dee had lost 54 matches in a row on the International Professional Circuit and was therefore the “world’s worst tennis professional”.

Dee sued the newspaper for defamation on 21st April 2009, 2 days before the expiry of the 1yr limitation period. His solicitors claimed £500,000(!!!!) and claimed that the front page item could blight his potential future career as a tennis coach [8] as while the claimant had lost these matches, he had had some success in the domestic Spanish league.

The newspaper denied that the article was defamatory, but in the event that it was, it relied upon a fair comment defence.

The Court held that, following Charleston, the key question was whether various (front and back page) articles were “sufficiently closely connected as to be regarded as a single publication” [29], not whether these articles were separate, on multiple pages or written by different authors. Given this, it quickly became apparent that the front and back page articles needed to be taken together. Mrs Justice Sharp DBE did however note at [30] that in reality many people may only have read one of the articles, and it was theoretically possible to argue that in more controversial cases, this issue could be determined at trial.

Whether the article was capable of a defamatory meaning was fairly straightforward, as it could suggest that the claimant lacked talent or “unreasonably and unrealistically persists in a career as a professional tennis player which is an expensive waste of money and doomed to failure” [38]. The problem was in evidencing that this caused Dee to be shunned or avoided. In the end, although the claimant argued that the focus of the complaint was that the article suggested incompetence or a lack of skill, the real complaint was one of exposing Dee to ridicule by making him look “absurdly bad at tennis” [55].

It is worth noting Sharp J’s comments that: “In my view it is not easy to translate these principles to the sporting arena, even though I entirely accept that many sportsmen and sportswomen, and the Claimant is one of them, are professionals who earn their living through their sporting skill, or endeavour to do so. It is difficult to characterise an allegation of relative lack of sporting skill, even if it leads to the bottom of whichever league the person or team participates in as necessarily imputing incompetence, quite apart from the question which could plainly arise as to whether such a suggestion is purely a value judgement. Such as allegation might be said to dent someone’s pride rather than their personal reputation, depending of course on the context. In every race, match or other sporting event, someone has to come last: that is the nature of competitive sport. Losing in sport is, as Mr Price [Defendant Counsel] submits, an occupational hazard” [49].

Sharp J was also highly critical of the suggestions both that the article could affect a future career as a coach at some unspecified time in the future because of the paper’s criticism of his athletic ability [53], and of the claimant’s pleaded case. Indeed at [58], She states that a claimant must “state clearly what his case is so the relevant issues are properly delineated in advance of trial and so the defendant has a proper opportunity to defend itself against what the complainant is really complaining about.”

The problem the claimant had is that the following, somewhat damning facts, were uncontroversial:

  • The claimant had a run of 54 consecutive defeats during which he did not win one set, in tournaments under the jurisdiction of the ITF and ATP
  • This consecutive run of defeats is a record equalling worst ever run of defeats in such tournaments
  • While the claimant also played (with some success) in domestic Spanish tournaments, these competitions did not directly award World ranking points

When at [109], the Court concluded that the article did draw a distinction between his performance on the international tennis circuit and the Spanish tournaments, the claimant really had no case left. He could not complain about the central facts of the article, as these were effectively true! As such the Defendant was awarded summary judgment, game set and match to the newspaper.

Youtube News Report of Robert’s Tennis Victory (@ 1:26 onwards):

see also a great blog posting on the case from the Jack of Kent: http://jackofkent.blogspot.com/2010/05/libel-and-tennis-trophies-of-robert-dee.html

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Its not just footballer players that can’t manage on £400,000pa

October 29, 2010

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Paul Smith v. Chelsea Football Club Plc [2010] EWHC 1168 (QB)

The full case report can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2010/1168.html

This case concerns Paul Smith, former Group Business Affairs Director of Chelsea Football Club, who having been dismissed by the Club, brought a case against them at an Employment Tribunal.

The background to the claim is that Smith was appointed by Peter Kenyon on 16th September 2003 to act as a ‘consultant’ marketing commercial director to the Board of Directors, as Peter Kenyon had been placed on “gardening leave” by Manchester United prior to being released to join Chelsea. At the end of October 2003, the claimant was given a draft contract stating his salary would be £300,000pa, with additional bonus entitlements as appropriate. As the contract contained confidentiality and non-competition clauses, the claimant refused to sign it and instead invoiced the club £25,000pm until he was put on the payroll four months later. His salary later rose to £330,000 in July 2004 and again to £400,000 when a new contract was drafted on 27th February 2007, making him the second highest-paid executive director at the club.

On 27th July 2007 however, the claimant was told by Peter Kenyon that his role was redundant.

The claimant took the club to an Employment Tribunal in October 2007, however while the tribunal found that the club had failed to comply with the requirements of section 4 of the 1996 Act when it increased the claimant’s salary in July 2004 and February 2007 by not giving a written statement containing particulars of this change; it also found that despite not signing either the 2003 or 2007 draft contracts, the claimant “did not act in any other way inconsistent with it” [16]. As such there was no enforceable agreement ever reached in respect of bonus or any employment benefits [18] that the claimant could use to support his claim for unpaid salary or bonuses. The tribunal found that even if there had have been an agreement, the club was within its rights not to exercise its discretion to operate the scheme [21(2)].

The club later admitted that it did not follow the statutory dismissal and disciplinary procedures and awarded the claimant the maximum compensatory award of £60,600 and a basic award of £1,395.

The claimant now seeks in the High Court:

1)      A declaration as to his terms and conditions of employment with the defendant pursuant to s.11 of the Employment Rights Act 1996

2)      Compensation for unfair dismissal

3)      An award for alleged unlawful deductions from his wages, pursuant to s.30 of the 1996 Act

 The claimant argues that the money owed to him is due to either an implied term of the contract or on a quantum meruit for the work actually performed [32], neither of which arguments were pursued at the employment tribunal. In a somewhat cheeky and money-grabbing manner, the claimant also argued that in the absence of any signed contract, “the question of what he should reasonably have been paid for the true worth of his services remains at large” [48].

The Court however rejected this argument as entirely artificial and more akin to statutory construction than a holistic view of what the tribunal was determining. Because the claimant could also quantify the exact amount of the sum claimed, it did not matter whether the claim was brought as an implied term or a quantum meruit, the fact it was essentially the same as the claim brought before the Employment Tribunal, prevented it from being argued again (issue estoppel) and therefore the claim being made in the present case constituted an abuse of process [66].

News Reports from 2008:  http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/2791266/Paul-Smith-in-1m-fight-with-Chelsea-Football-Club-over-sacking.html

Ironically, Peter Kenyon was himself dismissed in 2009: http://www.dailymail.co.uk/sport/football/article-1214017/Chief-executioner-Peter-Kenyons-Chelsea-fate-sealed-Luiz-Felipe-Scolari-row.html

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BASC makes sport shooting possible

October 29, 2010

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Last year, we covered the case of British Association for Shooting and Conservation Ltd (BASC) and their dispute with the tax authorities over the status of membership subscriptions: https://sportslawnews.wordpress.com/2009/03/18/bacs-do-not-have-to-become-arms-dealers/

This case has now been reheard by Mr Justice Colin Bishopp in British Association for Shooting and Conservation Ltd (BASC) v. The Commissioners for Her Majesty’s Revenue and Customs [2010] UKFTT 268 (TC). The full case can be read at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKFTT/TC/2010/TC00562.html

I don’t propose to repeat the facts again in this posting (they can be found in the original article), but essentially the Tribunal needed to determine whether BASC’s subscriptions fees were connected to politics or sport

The correct test for whether an item received an exemption from tax due to sport, is contained within Item 3 of Group 10 of Sch.9 to the Value Added Tax Act 1994:

“The supply by an eligible body to an individual, except, where the body operates a membership scheme, an individual who is not a member, of services closely linked with and essential to sport or physical education in which the individual is taking part.”

and essentially has five conditions (recognised in Canterbury Hockey Club v. Revenue and Customs Commissioners (Case C-253/07) [2008] STC 3351):

1)      The supply must be made by a non-profit making organisation [tick! BASC is a non-profit making organisation]

2)      The organisation must make a supply of services [tick! BASC makes a supply of services]

3)      Those services must be supplied to persons taking part in sport [ partial tick! The Court stated at [5] that the shooting of game is a sport, although some animal rights supporters might question this, disagreement over the supply to persons taking part]

4)      The services must be closely linked to sport  [disagreement]

5)      The supply must be essential to the transactions exempted [disagreement]

What changed in this judgment is that BASC provided additional evidence [7] as to how its activities support sport:

  • Organisation of three deer stalking schemes (two in England, one in Scotland)
  • Preservation of game habitats
  • Web service for members to identify and contact landowners who offer stalking
  • Negotiation of rights of access, and the formulation of codes of conduct for coastal wildfowling
  • Provision of training courses for coaches, range officers, school teachers, young people and its own members
  • Lobbying and educating ministers, MPs, Chief constables and others about the sport, in particular the securing of an amendment to the Hunting Act 2004

 

And Mr Justice Bishopp clarified at [14] that BASC did not have to exclusively supply all sport shooters with membership and services, and the fact that members could obtain some of the services themselves or through competing organisations did not affect the exemption analysis, although the court did add later that paragraph that BASC was unique.

Given that clarification, the Court accepted that the previous test was too high and that the test should not have been whether BASC’s suppliers were essential  to make sport physically possible (through the provision of land, game or guns), but rather whether the omission of its supplies would materially lessen the quality of the sport [15].

On this point, while the evidence was unanimous that if BASC or an equivalent did not exist, there would be significantly greater restrictions of shooting and that any available facilities would be of a much poorer quality [16], the defendants tried to challenge the decision on the grounds that BASC wider social and political functions beyond that of just sport prevented BASC’s services from being an essential supply (part 5 of the test) [19].

This argument was however rejected, as once the test had been satisfied that BASC’s supplies were closely linked to the sport of shooting and added (significant) value to the sport , the fact that other people and organisations also benefitted from them was irrelevant [20].

 Youtube, “Shooting Politics”, episode 9, 9th December 2009 (including a debate about Shooting and the 2012 Olympics):

Youtube, “Shooting Sports Trust”

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Moore Winter Sports accidents

October 25, 2010

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Emma Moore v. Hotelplan (T/a Inghams Travel) & Mr Adriano Tantera [2010] EWHC 276 (Ch)

This case concerns an accident while undertaking winter sports, more particularly an organised evening snowmobile (‘skidoo’) ride at the Italian ski resort of Passo Tonale in January 2007. The claimant was a 37yr old personal trainer on a group skiing holiday organised by the defendant operator (Inghams). The company subsequently joined a third party (Mr Tantera) to the action as he provided the skidoos and instructed the party as to their use.

The action arose when the claimant lost control of the skidoo as the group was descending down the mountain. The claimant collided at speed with a parked car at the foot of the slope causing spinal injury and paralysis at T5 (mid-chest).

The action was for:

  • breach of contract,
  • breach of tortuous / delictual duties owed under Articles 2050 and/or 2043 of the Italian Civil Code
  • Negligence

The case was made more complicated by the fact that the defendant denied responsibility for the activity and blamed the third party entirely, to the extent that it claimed any actions of the Ingham representative on site were merely as an agent for Mr Tantera.

The Court at [7] identified five key questions:

  1. What were the contractual arrangements for the skidoo trip?
  2. What instructions were given to the claimant as to the control of the skidoo, and in particular was she instructed in the use of the engine cut out, the cut off button?
  3. What was the cause of the claimant’s loss of control of the skidoo?
  4. Would the operation of the cut-off button have prevented the accident?
  5. Was there contributory negligence on the part of the claimant?

Taking each in turn,

Although the holiday was booked by another member on behalf of the group four months previously and purported to exclude liability for any subsequent third party excursions, the Court held at [28] that Mr Tantera operated this excursion on behalf of Inghams through a contract signed in 2002, and viewed the party as Ingham customers [16]. The Court also relied on the fact that the Skidoo’s were advertised in an Inghams’ welcome pack [11], the party paid Inghams for the trip [12], received a receipt on headed Inghams notepaper [12], were not told that the onsite representative (Ms Hodges) was acting for a third party [13], had to exclusively book the excursion through Ms Hodges [24] and had to sign disclaimers (that were subsequently not relied on as they were for a different vehicle) on behalf of Inghams [14]. Given these findings, the contract for the supply of the skidoo excursion was also impliedly subject to the original liability clause meaning that Inghams was liable for any injuries and consequent losses “caused by the lack of reasonable care and skill” on the part of Mr Tantera [29].

Having established potential liability, the next question was to establish whether the defendants through Mr Tantera had breached their duty to the group in failing to give clear operating instructions for the Skidoos. The Court heard a number of mechanical arguments relating to the Skidoos (Polaris 550 Fun Sport Edge 136 Touring snowmobiles), but essentially this section can be summarised as a factual discussion of the safety briefing. The Court heard that all members of the group chose to wear helmets, despite the fact that this was non-compulsory [33], and that several members of the group were complete novices. The party also stated unanimously that the safety briefing took 30 seconds each [34-39], and that no-one was shown what or where the cut-off switch was. This contradicted Mr Tantero’s evidence that he spent 2-3 minutes with each person and that his usual practice was to give such an instruction [41]. The most damning bit of evidence though came from Ms Hodges who described Mr Tantera’s briefing in her witness statement as:

“When he briefs each driver he first asks (in English) if it is their first time on a skidoo, then he switches on the engine himself, they are not allowed to do this. He then tests the accelerator, which is on the right, and says “this is the throttle-accelerator; it is an automatic clutch, no gears”. He then shows them the brake on the left-hand side and says “this is the brake”. Stay in line, five to six metres separation, no overtaking, no slalom.” [40]

 Unsurprisingly the Court preferred the evidence of the party and held that Mr Tantero had not shown the group the cut-off switch, thereby breaching his duty to the claimant.

 The Judge held that the accident occurred when the Skidoo was going too fast on the downhill return leg of the journey, 45mins into an otherwise uneventful trip. Although the Court heard from two expert witnesses, it preferred the defendant expert’s view that an examination of the skidoo after the accident had shown no defects with the mechanical operation of the vehicle, suggesting driver error was to blame for the accident. In particular the Judge held that the claimant most probably drove too close to the skidoo in front of her, swerving to avoid it and in her panic hitting the accelerator rather than the brake [65].

The causation question of whether an application of the cut-off switch could have prevented the accident was comparatively straightforward and the Court held at [74] that it would have done.

The only question remaining was whether the claimant was contributory negligent. At [80], the Court found that there were two errors the claimant made that materially contributed to the accident, the first was driving too close to the skidoo in front, the second was in applying the throttle rather than the brake (although the Court was careful to suggest that she should not be judged too harshly for her confusion in the ‘heat of the moment’). The Court however rejected the argument that the claimant should have noticed and applied the cut-off switch.

In summary, the Court suggested that “the Claimant created the emergency, but as a consequence of the negligence on the part of Mr Tantera in failing to instruct her as to the use of the cut-off button in an emergency, she did not have the means of dealing with it in a manner that would have avoided the accident”, although Mr Justice Owen did award 30% contributory negligence.

There are two other interesting elements to the case that are worthy of consideration, the first is a scathing judgment on the quality of the evidence from one of the defendants experts’ (a Mr Christopher Exall). At [75], the Court suggested that there were: “a number of gravely disquieting features of his evidence, culminating in the assertion in his third report, made under an expert’s declaration of truth, that he had had discussions with a Mr Michael McDowell of Polaris UK, an assertion that, as he was forced to concede in cross-examination, was subsequently untrue. I do not propose to set out the other actions on his part which on any view were indefensible for a witness under an obligation to the court to give impartial and objective evidence. But there can be no doubt that he took on the role of an advocate for the defendant. He did not give impartial evidence, and was wholly discredited as a witness. I could not place any reliance on any part of his evidence.”   Ouch!

The other comment interesting part of the judgment relates to insurance. At [17], the Court quoted from the Defendant Reps Manual Winter 06/07 which contained the following paragraph under the heading ‘Snow-mobiling’: “You will find that snow mobiling and ski-doo’s are offered in many of our ski resorts but the normal holiday insurance cover does not include any liability cover for damage, injury or death caused to third parties. The liability cover held by the operator and included in the price or offered as an extra, is unlikely to be anywhere near adequate in the event of an accident causing serious injury or death to a third party…..”

I don’t know about you, but while the Court did not comment on this paragraph, I think it is worth pausing a few minutes to reflect on it. Essentially isn’t Inghams saying they know that not only is their insurance cover excluded by the holiday contract, but that the operator’s own insurance cover is inadequate, even if purchased as an add-on extra! In fact it makes me so worried, that on my next skiing holiday, it would be perhaps be better if I Skidon’t and we stick to the planks of wood (or fibreglass!).

Youtube clip of a skidoo jump:

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Angling for the liability of Route Notes in Rallying

October 24, 2010

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Munro v. Sturrock (T/a Scotmaps) [2010] CSOH 16

This case concerns a rally accident during the “The Little the Jewellers Speyside Stages 2004” rally in Scotland. The pursuer (claimant) was an experienced racer and double Scottish Champion. On the day in question, he was driving a Subaru Impreza, while his co-driver Heather Connon (now MacKenzie) navigated. The claim results from a crash that occurred on the 7th junction during the 6th of the 9 rally stages, just outside Clashindarroch, when the car ran wide at the bend and onto the offside banking, damaging the car and allegedly causing psychiatric injuries to Munro.

Munro later brought a case alleging that the description of the corner in question in the route notes had been negligently compiled  and it was this failure that caused the accident.

The Court heard plenty of evidence regarding the status of route notes, in particular their inherent subjectivity and the fact that one driver made these notes for 120 other drivers of differing ability [39]. Indeed, the reliance placed on these notes can be demonstrated by the fact that the organisers of the Speyside rally had prohibited reconnaissance runs by competitors under pain of disqualification. Instead for £100, the defendants provided route notes and an accompanying DVD “describing the road and bends accurately, including any hazards that are known at the time” [2]. This description consisted of an abbreviated angle (40 degrees=4), a direction (eg L or R) and any additional information relevant to the correct line to take around the corner (eg “In” [take a tight line], or “Cut” [the corner]).

The Court later heard at [13] that route notes had three main purposes:

  1. To reduce the advantage gained by cheats using other notes
  2. To reduce the advantage of those with local knowledge
  3. To make the rally safer, by providing drivers with a shorthand description of what the road was doing

The main thrust of the pursuer’s argument was that the corner should not have been designated as 4Lin, but rather as 7, as it had been previously described in 2001. Had the corner been described differently, the pursuer states that he would have approached it much slower than the 70mph and fifth gear in which he attempted it.

Initially his case seemed to be supported by a “smoking gun” email written in haste by Andrew Kelly (who helped check the route notes):

“On the basis of your information it would appear that Bill [Sturrock] has made a massive error in his route notes. As you know I’m the one that checks notes with him on the day and therefore, if this is correct, I must accept some degree of responsibility… I have no idea how I could have got this corner wrong as even in the Volvo I would have thought I would have noticed such a difference. I feel really bad about this and I am extremely disappointed in my own ability as a so-called rally driver.” [34]

At trial however, Mr Kelly couldn’t have navigated faster away from this email though and he was supported by the expert witnesses who, in the main, suggested that mathematical measurements proved the corner was 30-40 degrees. The judge (Lord Uist) agreed and seemed particularly unsympathetic to the fact that previous route notes may have contained different descriptions as this was not the accident being discussed at the trial [44]. Unfortunately for us, this conclusion also meant that the route notes were accurate and therefore the case could be disposed of without any discussion of how the standard of care test would have been applied. This is a a shame as a liability discussion would have been very interesting given that the Court would have needed to balance the obvious reliance placed on the notes by the drivers and navigators, with the subjective and scientifically unsupported nature of the instructions.

Youtube Clip of another WRC rally accident which captures the inherent risks involved in racing:

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Should you wear a helmet every time you cycle?

March 31, 2009

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Source: http://www.independent.co.uk/news/uk/home-news/outrage-at-ruling-on-helmets-for-cyclists-1645736.html; http://news.bbc.co.uk/1/hi/uk_politics/3563671.stm; http://www.cyclistsdefencefund.org.uk/cycle-helmets-and-law; http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492

 

Read the full case report of Smith v. Finch [2009] EWHC 53 (QB) here: (http://www.ctc.org.uk/resources/Campaigns/0902_Smith-v-Finch-judgment_brf.pdf)

 

 The case of Smith concerns a cyclist (Robert Smith) who was struck and knocked off his bike by a motorcyclist (Michael Finch), while making a turn at a junction. At face value, this seems simply a run-of-the-mill traffic collision case, indeed the exact facts of the incident were disputed and the defendant argued that it was the claimant who was responsible for causing the collision by pulling out as he did. The case is important however because the defendant also argued that in the event that he should be found liable, the claimant should have his damages reduced for being contributory negligent for not wearing a cycle helmet and it is this part of the decision that has provoked the most controversy.

 

After listening to various witnesses give evidence, the court found in favour of the claimant, stating that in all likelihood, the defendant had been driving at an excessive speed and had ridden much too close to the claimant as he tried to overtake him [38]. Ultimately, the claimant also succeeded in rejecting any allegations of contributory negligence as the court found that the mechanics of his head injury would not have been reduced or prevented by a helmet [56]. The court did however suggest that in other cases, a deduction could be made.

 

In particular, the court at [43] stated that: “as it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road.”

 

The court concluded that given the concern of the government and road safety campaigners was to reduce road accident casualties, “the cyclist who does not wear a helmet runs the risk of contributing to his / her injuries” [45] even if the initial cause of the collision was not their fault.

 

Although roundly criticised in the press, at face value, the approach of the court does seem to agree with Dr Julian Fulbrook’s 2004 article on “Cycle helmets and contributory negligence” published in 3 JPI Law 171-191. The article suggests that an automatic 25% deduction for not wearing a cycling helmet was wholly unjustified. Dr Fulbrook did however suggest that there were limited instances where a helmet could have prevented an injury and on these occasions, damages could be reduced by 10-15%.

  

Note the comments though of Martin Porter QC (http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492 /159 New Law Journal (2009) 337) Who argues that Smith departs from the previous High Court case of A (a child) v Shorrock [2001] All ER (D) 140 (Oct) where Judge Brown stated that if he had found liability against the defendant, he would have made no deduction for contributory negligence for failing to wear a cycle helmet as there was no fault: the use of a helmet not being mandatory and the type of cycling by the claimant not being unusually hazardous.

 

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Football (buying) Agent loses tribunal case on VAT

March 27, 2009

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Source: Umbro International Ltd v. The Commissioners for Her Majesty’s Revenue & Customs (HMRC) [2009] EWHC 438 (Ch) (http://www.bailii.org/ew/cases/EWHC/Ch/2009/438.html)

 

Umbro (the well known sports clothing brand) appealed against the decision of a VAT Tribunal in February 2008 that rejected its claim for overpaid customs duties on its product. The facts of the case are uncontroversial, rather what was at issue was the interpretation of these facts.

 

The case concerned Customs duty (which is paid on the customs value of imported goods). Under the terms of Council Regulation (EEC) 2913/92 (“the Customs Code”), commission charged by the importer’s buying agent is excluded from the dutiable customs value.

 

Because Umbro only import and sell sport goods, they used a company (PNH Limited) to act as their buying agent from the approved Chinese manufacturers (Dongguan Haiqi Sports Garment Co Ltd (DHS)). They therefore argued that PNH’s profit mark-up should be deducted from the customs value of the final goods. HMRC however rejected this argument and suggested instead that PNH were a principal in their own right rather than an agent and just because Umbro called the relationship an agency, did not make it so [29]. The tribunal agreed with HMRC (although they criticised several aspects of their procedure) and this decision is the appeal.

 

Ultimately Umbro failed to meet the burden of proof and establish that PNH were an agent. Neither the level of risk faced by PNH [38] nor the fact that the commission paid by PNH was a variable mark-up [50] were definitive in themselves, however put together these factors suggested that PNH was capable of acting as a principal in their own right.  

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Calzaghe disliked the least

March 24, 2009

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Source: http://www.independent.co.uk/sport/general/others/boxing-calzaghe-clobbers-warren-for-1632m-1646412.html

 

Read the full case here: Sports Network Ltd v. Joe Calzaghe CBE [2009] EWHC 480 (QB) http://www.bailii.org/ew/cases/EWHC/QB/2009/480.html

 

The High Court has finally decided on the outcome of the Frank Warren (Boxing Promoter, and director of Sports Network Ltd) vs Joe Calzaghe CBE (world champion professional boxer) fight. It was a closely fought battle, but arguably Calzaghe narrowly won on points, and Warren has been told to pay Calzaghe £2m in unpaid fees.

 

If you read the case, it is clear that the Judge (Mr Wyn Williams) is very critical of many of the participants in the case. Both Calzaghe and Warren’s behaviour was shabby at best, and both men were complicit in the deception of the governing body in relation to avoiding fees [62]. Calzaghe’s lawyer (Mr Gareth Williams) was also accused of misleading the court [107], and Calzaghe himself was accused of lying while giving evidence [138]. Warren came off little better and his counterclaim for £1m was described at [155] as a “smokescreen…..to avoid payment by the Claimant to the Defendant of a very substantial sum of money”

 

The facts of the case concern whether an agreement was reached for Warren’s company – Sports Network Ltd to promote Calzaghe’s last (and ultimately successful) fight on 8th November 2008 against Roy Jones Jr. Warren claimed that because Calzaghe promoted this fight himself, he was in breach of contract, and Warren therefore withheld payment of the fees from the previous fight against Bernard Hopkins in compensation for this breach. The issue before the court was therefore whether a contract (oral or written) was in existence for Sports Network Ltd to promote the Roy Jones fight. Ultimately, the court held that this contract did not exist and found for Calzaghe, despite Warren’s claim of an oral agreement and a handshake (or hugs) between the two parties. What was material about the case was Mr Justice Williams’ view that if a contract had been agreed between the two parties, Warren was such an astute businessman that the contract would quickly have been written up and signed. The fact that nothing was ever put in writing, seemed to suggest that an agreement was never actually reached.

 

That said, neither party emerges from the case with any distinction. Indeed, the facts of the case are muddier than a very muddy footpath. It seems not so much that Calzaghe won, rather that Williams J disliked him the least.

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Who would have thought a race-track could be noisy?

March 6, 2009

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Source: Watson & Others v. Croft Promo-Sport Ltd [2009] EWCA CIV 15; see also http://www.thenorthernecho.co.uk/news/4076123.Croft_Circuit_loses_noise_appeal/?action=complain&cid=7472608 ; and ‘Injunction for continuing noise nuisance’ Environmental Law Monthly Env. L.M. (2009) February Pages 1-4

The Claimants (who occupy houses just north of the race circuit) alleged that the defendants use of Croft Motor Circuit, near Darlington gave rise to excessive noise and constituted a nuisance. They sought an injunction to restrain continuation of the nuisance, and compensation for past nuisances. Although the Circuit had received planning permission for motor racing in 1963, this was not obtained without difficulty and various appeals. By 2006, the circuit had upto 147 days (mainly in the summer) in which racing took place. The claimants do not object to the car and bike racing days which amount to 45-50 days each year, but rather to the Vehicle testing and track days (where the noise levels are at their highest, all day long)

 

In the High Court, Mr Justice Simon decided in favour of the defendants and refused an injunction, but awarded 109,600 compensation in light of the decreased value of their properties and loss of amenity. This argument was rejected by the Court of Appeal, and they later allowed the injunction, restricting the number of days that the circuit could operate.

 

The Defendants have now been refused leave to appeal to the House of Lords.

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Solicitor deceives businessman

March 6, 2009

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Source: Kinch v. Rosling & Others [2009] EWHC 286 (QB); see also http://www.sporting-life.com/football/news/story_get.cgi?STORY_NAME=soccer/09/02/17/SOCCER_Kinch.html

Gilbert Kinch (the claimant) was the victim of an advanced free fraud, perpetuated when he wanted to raise money in 2000 to finance the acquisition of shares to take over control of Leicester Football Club.

 

Unfortunately the funds that Mr Kinch thought were available, turned out not to be and the claimant became liable for debts which he was then unable to pay. The Football Club went into administration, and the claimant was made bankrupt.

 

Following a Solicitors Disciplinary Tribunal in 2006, David Rosling (the claimants solicitor & First Defendant) was struck off the roll of solicitors. The claimant was awarded just under £2million for the humiliation, distress and anxiety as a result of the bankruptcy, and for various special damages that occurred as a result of the misrepresentations.

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