Tag Archives: uk

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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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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That hazard ought to be marked! Hold on a minute, it was!

June 27, 2010

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Source: Young v. Plymouth City Council (26.02.10) Exeter Crown Court, (unreported), Zurich case

The claimant injured her foot while out walking her dogs when she trod on a 12-inch wooden marker, which had been placed in Central Park, Plymouth. She bought a claim against the council alleging a failure under the Occupiers Liability Act 1957.

Mrs Young alleged that the Council owed her a duty because the area was not reasonably safe for visitors because the marker was partially concealed by the grass, and therefore its hidden nature constituted a trap.
By contrast, the Council argued that the claimant, knowing of the marker (she admitted at Court that she was probably aware of the marker at the time of the accident, and on previous visits to the park) should have taken greater care for her own safety.

The judge agreed and dismissed the claim, arguing that the marker did not present a danger to visitors and given that the marker was an obvious danger, no warning signs were necessary. This is a relief, otherwise the council would have had to have placed a marker warning of the second marker!!!

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Boys will be boys…

July 5, 2009

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Full Case Report: Orchard v. Lee [2009] EWCA Civ 295 (http://www.bailii.org/ew/cases/EWCA/Civ/2009/295.html)

Other Sources: http://business.timesonline.co.uk/tol/business/law/reports/article6087451.ece; http://www.solicitorsjournal.com/story.asp?storyCode=14095

The case itself concerns an injury to an assistant lunch break supervisor who was patrolling the playground of Corfe Hills School in Dorset on 27th January 2004 when she was struck by a thirteen year pupil playing tag with a friend. The claimant’s case was that running backwards at speed created a foreseeable risk of injury and this should have been appreciated by a boy of the claimant’s age. (Although the claimant brought proceedings naming both boys and the school as defendants, no action was ever commenced against the school).

In Poole County Court (7PH00119, 30th May 2008), her claim was rejected as merely a simple accident caused by horseplay. While there was some inconsistency around how the accident happened, the Court’s finding on the location and circumstances of the accident [40] was not later challenged by the CA.

Instead the focus in the Court of Appeal (in the leading judgment given by Lord Justice Waller) was on clarifying the applicable test of negligence. The first is that mere foreseeability of the risk of injury was not enough as children would appreciate that many games could lead to bruises and scrapes [7]. The court then confirmed that the primary question was whether the average child of that age would appreciate that their conduct was culpable [9]?

However probably the most important paragraph of the judgment was at [11], where the Court confirmed that “for a child to be held culpable, the conduct must be careless to a very high degree and where a child of 13 is partaking in a game within a play area, not breaking any rules, and is not acting to any significant degree beyond the norms of that game, he or she will not be held culpable.”

Given this ruling, the conclusion in [14] that “no part of the conduct seems to be outside the norm where a game of tag is being played, let alone a significant degree outside the norm”, and the fact that the school had only prohibited running inside the corridors, rather than in playgrounds, the court felt that the two boys were only acting as typical boisterous  13 year old boys might act and therefore “it would be a retrograde step to visit liability on a 13 year old for simply playing [an acceptable game] in the area where he was allowed to do so [the playground].” [19]

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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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Drunk horse-riders

March 28, 2009

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Source: http://www.foxnews.com/story/0,2933,485348,00.html ; http://news.bbc.co.uk/1/hi/england/tyne/7861406.stm ; http://news.bbc.co.uk/1/hi/england/tyne/7861406.stm

 

Who’d have thought that drunk riding was so popular? You wait all year for a drunken horse-riding case and three come along at the same time!

 

In Cody (Wyoming), 28-year old Benjamin Daniels was charged with public intoxication after slowly riding a white horse along a street during a snowstorm. Police said he was a road hazard.

 

The same month, when 31-year old Maxine Wiltshire was riding her horse around Hemel Hempstead (UK), her horse lost a shoe. Unable to ride him back to the stables, Ms Wiltshire called a relative to pick her up in a trailer. While she was waiting however, she proceeded to drink two small bottles of vodka. Later that afternoon, Police were called to the Greenacres pub in the shopping centre to deal with a clearly intoxicated Ms Wiltshire. Indeed, witnesses stated that when a dog walker asked Ms Wiltshire to steer clear of his pet, she replied: “My horse will eat your dog!” In court, Ms Wiltshire accepted that it was unwise to take the horse into the shopping centre and pleaded guilty to being drunk in charge of a horse in a public place. She was fined £50 plus £50 costs.

 

31-year old Geoffrey Blacklin was also fined for riding while intoxicated. In this case, it was for riding bareback through the streets of Newcastle. He was charged under the 1872 Licensing Act and fined £150  and £35 costs for being caught drunk “in charge of a carriage horse, cattle or steam engine.”

 

On each occasion none of the horses were charged. Although I think this may have been due to their failure to blow into the breathalyzer correctly!

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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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New edition of ‘Sport and the Law Journal’ out

March 24, 2009

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Source: http://www.britishsportslaw.org/journal/default.asp

This edition – 16(2) of the journal contains articles from:

 

Matthew Himsworth, ‘Playing with Confidence’ – concerning privacy within sport

Stephen Weatherill, ‘Article 82 EC and Sporting ‘Conflict of Interest’: the Judgement in Motoe’ – concerning the recent ECJ ruling on whether sports organisations are immune from European Law (take note FIFA!!!!!)

George Castro, ‘Should the Football Authorities allow Third-Party Ownership’ of the Registrations of Football Players?’ – concerning Mascherano and Tevez

Walter Cairns, ‘Sports Law Foreign Update’

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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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