AMP Advisory & Management Partners A.G. v Force India Formula One Team Ltd ((in Liquidation))
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Moulder |
| Judgment Date | 18 September 2019 |
| Neutral Citation | [2019] EWHC 2426 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2017-000423 |
| Date | 18 September 2019 |
[2019] EWHC 2426 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
Mrs Justice Moulder
Case No: CL-2017-000423
William McCormick QC and Max Cole (instructed by Kingsley Napley LLP) for the Claimant
James Segan and George Molyneaux (instructed by Solesbury Gay) for the Defendant
Hearing dates: 8–12, 16 and 22 July 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
By these proceedings AMP Advisory & Management Partners AG (“AMP”) claims a percentage of the net receipts under the sponsorship agreement entered into between the defendant, Force India Formula One Team Limited (“Force India”) and BWT AG (“the BWT Contract”) dated 13 March 2017.
Force India went into administration in July 2018. The assets and business were bought and the team continues to race as Racing Point Force India Formula 1 Team (“Racing Point”). A number of the defendant's witnesses are now employed by Racing Point in similar or identical roles to those held in Force India. BWT currently sponsors Racing Point.
Background
Mr Emanuel Moser describes himself as the Executive Chairman of AMP. As well as being AMP's sole shareholder he is also its sole employee. He describes the company's focus as being on the “sports marketing industry”.
Mr Moser's evidence is that AMP has been actively involved in Formula One marketing since 2014 (paragraph 18 of his first witness statement). At that time he states that AMP's objective was to find, interest and convince a high-value principal partner (a potential title sponsor) for the Formula One team Red Bull Sauber Petronas (“Sauber”).
His evidence is that in around January 2017 he identified BWT, an Austrian company whose business centred on manufacturing water treatment technology as being a suitable potential title sponsor for Sauber (paragraph 26 of his first witness statement).
Mr Tara Ramos is the managing director of a marketing, PR and event management company. The focus of the business is on celebrity arrangements and event organisation (paragraph 9 of his first witness statement). His evidence is that he met Mr Moser around 2012, that they would see each other a couple of times a year and they stayed in fairly regular contact and were always looking for opportunities to work together (paragraph 25 of his first witness statement).
In February 2017 Mr Ramos was in London for a leisure trip and spoke to Mr Moser who explained that he had a potential sponsorship company. Mr Ramos was told that Mr Moser had introduced the sponsor to Sauber but that deal had broken down, the main problem being that Sauber would not agree to change the base colour of their car to pink. According to Mr Ramos they discussed alternatives to Sauber and identified Force India and the Haas Formula One team. Mr Ramos said that Mr Moser offered him a share of the commission and Mr Ramos said he was happy to work with him. Mr Ramos told Mr Moser that he could approach Force India because he had lunch set up with the Sporting Director of Force India, Mr Stevenson and a lunch with the Team Principal, Dr Mallya.
On Sunday, 19 February 2017, Mr Ramos (and one of the Formula One drivers) had lunch with Mr Stevenson. At the lunch Mr Ramos mentioned to Mr Stevenson the potential sponsor and that the team would have to change the base colour of the car to pink.
On Monday, 20 February 2017 Mr Ramos had lunch with Dr Mallya at Dr Mallya's home. Later that night (the early hours of 21 February 2017) Mr Ramos sent Mr Stevenson a copy of the mandate agreement (the “Mandate Agreement”) setting out payment terms for the proposed deal but not identifying the sponsor. The Mandate Agreement provided that in the event that Force India concluded a sponsorship agreement for the 2017 Formula One racing season onwards with an (unnamed) sponsor, Force India would pay a commission of 15% of the total net cash sponsorship fees up to €12.5 million and 12% on the sponsorship fees in excess of that amount.
On Tuesday, 21 February 2017 Mr Ramos met an old school friend, Ms Levin, for coffee. During the meeting with Ms Levin, Mr Ramos was in communication with Mr Curnow, the Commercial Director of Force India, by WhatsApp and he also spoke to him by phone. In the course of those exchanges, Mr Ramos revealed to Mr Curnow the identity of the potential sponsor. That evening Mr Ramos flew back to Oslo.
On Wednesday, 22 February 2017 Mr Ramos had various conversations with Mr Curnow. Mr Moser met Mr Hubner of BWT in the afternoon.
Over the next few days the claimant's case is that Mr Moser and Mr Ramos continued to act “as intermediaries” between BWT and Force India (paragraph 95 of Mr Ramos' first witness statement).
On 2 March 2018 Mr Curnow sent to Mr Ramos and Mr Moser the Force India draft agency agreement.
On 3 March 2017 Mr Moser sent a marked up copy of the Force India draft agency agreement (the “Long Form Agreement”) back to Mr Curnow for signature.
The sponsorship deal with BWT was announced on 14 March 2017.
Evidence
For the claimant the court heard evidence from:
i) Mr Emanuel Moser;
ii) Mr Tara Ramos;
iii) Mr Toto Wolff, the Chief Executive Officer of Mercedes Benz Grand Prix Limited (“Mercedes”) and Team Principal of the Mercedes-AMG Formula One racing team;
iv) Ms Monisha Kaltenborn, who at the relevant time was team principal of the Sauber Formula One team.
For the defendant the court heard evidence from:
i) Dr Vijay Mallya, a director and the Team Principal of Force India as well as an indirect shareholder (as to approximately 42%);
ii) Mr Otmar Szafnauer, Chief Operating Officer of Force India at the material time;
iii) Mr Stephen Curnow, Commercial Director of Force India at the material time;
iv) Mr Andrew Stevenson, Sporting Director of Force India at the material time;
v) Ms Leslie Ross, general counsel of Force India at the relevant time;
vi) Mr Andreas Weissenbacher, the Chief Executive Officer and Chairman of the Executive Board of BWT.
Mr Haubold, the COO of Weirather Wenzel & Partner, a sports marketing company, and Ms Levin did not give live evidence. The evidence of Ms Levin which related to the events of the morning of 21 February 2017 was agreed.
I make the following observations about certain witnesses as it is relevant to the determination of the issues before the court:
i) Mr Wolff was called by the claimant but was an independent witness in the sense that he is the team principal of Mercedes. He accepted that he could not recollect dates but in my view was clear in his recollection that he spoke to Mr Weissenbacher who said he was considering Sauber and Force India and Mr Wolff advised him on balance to go with Force India. He was also clear that he got a call from Mr Szafnauer and provided him with the telephone number of Mr Weissenbacher. Mr Wolff also recalled at least two conversations with Mr Szafnauer and that there was no mention of Mr Ramos in the first call.
ii) Mr Weissenbacher's evidence was of limited assistance to the court. Although he was able to describe in general terms the way in which he operated as chairman of BWT and made it clear that he did not deal personally with emails sent to him, he appeared unable in cross examination to recall any details of exchanges which were relevant to these proceedings, even to the extent that he appeared to have forgotten the meeting with the defendant's solicitors concerning him giving evidence. Whilst his apparent inability to recall any detail may be due to the passage of time, it means that he was able to provide little real assistance on the issues before the court.
iii) Mr Moser was shown by the evidence to have made statements in correspondence which were not accurate: for example he sent an email on 6 February 2017 to Ms Kaltenborn stating that he was “in direct contact” with Andreas Weissenbacher and “recently able to interest Mr Weissenbacher” in Sauber title sponsoring. It is clear from the contemporaneous emails that whilst he was in contact with Mr Hubner he was not in contact with Mr Weissenbacher: the true position was that he had sent an email on 3 February to Mr Weissenbacher's personal assistant, Ms Berger-Sollinger which had been passed to Mr Hubner to respond. The emails also demonstrate that Mr Moser was offering BWT the opportunity to work with Sauber, when no such approach had been mandated by Sauber: Mr Moser sent an email at 9.03 to Mr Hubner on 6 February stating:
“as already discussed, we, and Sauber respectively, are very interested in a prominent and sustained partnership with BWT…”
His email to Ms Kaltenborn was only sent at 15.05 later that day. Similarly on 20 February 2017 Mr Moser stated in an email that he was “in direct contact with Vijay Mallya” which again on the evidence was incorrect. Whilst in cross examination Mr Moser sought to explain this particular statement on the basis that AMP was in contact with Dr Mallya through Mr Ramos as an agent of AMP, this seemed a somewhat contrived explanation. Of more concern is that in that email of 20 February, Mr Moser made an offer to BWT on behalf of Dr Mallya and Force India to place the BWT logo on the cars, and to change their colour to BWT pink at a cost of between €15 and €20 million for three years. The material part of the email read:
“…Vijay Mallya and Force India would today offer BWT the opportunity in addition to a prominent BWT logo placement, to present the Formula One vehicles (both vehicles) with their basic colour...
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