Anthony McGann v Michael Bisping

Hearing dates: 26, 27, 28 April, 2, 3, 4, 8, 10, 15, 16, 17 May 2017

Judgment Approved

Mr Salter QC:

Introduction

The defendant, Michael Bisping ("Mr Bisping"), is a mixed martial arts fighter, who is well-known in that world. The claimant, Anthony McGann ("Mr McGann"), was for a period Mr Bisping's manager. In this action, Mr McGann claims payment of arrears of commission on Mr Bisping's earnings, and repayment of expenses alleged to have been paid on Mr Bisping's behalf. Mr McGann says that these sums are due under the terms of a Management Agreement dated 22 July 2005 ("the Management Agreement"), alternatively on what his closing submissions describe as a restitutionary basis.

Mr Bisping denies signing the Management Agreement (though he accepts that he did sign some form of agreement), and denies the authenticity of the invoices and other documents relating to expenses now relied on by Mr McGann, alleging that they have been fabricated for the purposes of this action. Mr Bisping's fundamental position is that he owes nothing further to Mr McGann.

Mr Bisping denies that any further monies are owed by way of commission. In particular:

3.1 He denies that any commission is payable on sums deducted at source by the US and Australian tax authorities

3.2 He denies that any commission is payable to Mr McGann on the value of two Range Rover motorcars which Mr Bisping received from Zuffa LLC ("Zuffa") following his appearances in the reality television series The Ultimate Fighter ("TUF"), on the basis that those cars were a gift.

3.3 He denies that any commission is payable to Mr McGann on monies received by Michael Bisping Limited and/or Royal MMA Inc.

3.4 He denies that Mr McGann has any contractual right to commission following the ending of their relationship in May or July 2011

Mr Bisping also denies that any further payment for expenses is due from him, asserting that he has already paid all that it was agreed that he should pay. It is in any event Mr Bisping's case that the claims now put forward by Mr McGann are (like the invoices relied upon to support them) invented or (at least) exaggerated.

Mr Bisping also relies on settlements of account which he says were reached between him and Mr McGann in 2007 and December 2010. Finally, Mr Bisping says that at least some of Mr McGann's claims are statute-barred. Mr Bisping also counterclaims for an account of monies received by Mr McGann on his behalf.

The course of the hearing

The Claim Form in this action was originally issued on 18 February 2013 in the Warrington County Court. The proceedings were first transferred to the Chester County Court, then (by order dated 25 November 2013 of HH Judge Halbert) to the Central London County Court, and finally to The London Mercantile Court.

The action was originally listed for trial in March 2015 before HH Judge Mackie QC. However, on 26 February 2015 HH Judge Mackie vacated that trial date and adjourned the matter to come on not before 1 October 2015, on the grounds of what he described as "a deplorable failure by [Mr Bisping] regarding disclosure", resulting in the case being in "a state of disarray". HH Judge Mackie gave directions for mediation and/or a without prejudice meeting between the parties and their respective solicitors "with a view to seeing what steps can be taken to settle the case or at least narrow the issues in dispute between the parties". Regrettably, no settlement was achieved, and the action was then re-listed for trial before HHJ Waksman QC on Monday 5 October 2015. Unfortunately, Mr McGann was injured in a road accident shortly beforehand, and that trial date also had to be vacated.

The trial was then re-listed before me, to begin on Wednesday, 26 April 2017. It eventually occupied 11 court days, during which I heard evidence from Mr McGann, from Mr Bisping, and from 11 other witnesses (one of whom gave evidence by video link from the USA). A number of video extracts were played during the trial. Closing submissions were then made in writing. At trial, Mr McGann was represented by Mr Nigel Lawrence QC and Ms Victoria Roberts. They were not the counsel who had been instructed for the October 2015 trial date. Mr Bisping was represented throughout by Mr Gabriel Buttimore. I am grateful to all counsel for their assistance.

The 59-page Written Opening Submission served by Mr Lawrence and Ms Roberts on Monday 24 April 2017, less than two days prior to the start of the trial, took two preliminary points. First, it argued that Mr Bisping was precluded from disputing the authenticity of the Management Agreement and the invoices, because he had not served notice under CPR 32.19 in relation to those documents. Secondly, it argued that Mr Bisping was precluded from relying upon any witness evidence of fact at trial by paragraph 11 of the order dated 28 August 2014 of HHJ Mackie QC ("the August 2014 Order"), as a consequence of Mr Bisping's failure to comply with the conditions of the August 2014 Order.

I ruled against both of these contentions, for reasons which I expressed briefly at the time and which I set out at greater length below.

CPR 32.19

Paragraph 2 of the Defence & Counterclaim served on 5 April 2013 responded to Mr McGann's reliance upon the Management Agreement in his Particulars of Claim as follows:

2. The Claimant relies on [the Management Agreement]. In this respect:

(a) no admissions are made as to whether the [Management Agreement] was signed by the Defendant and the Claimant is required to prove this;

(b) at all material times the Defendant understood that he was managed not by the [Claimant] personally, but by Wolfslair Promotions Ltd .. with which company the Defendant believes he signed a management agreement in or around May 2005. The Claimant is accordingly put to strict proof that the Claimant is the proper claimant for any management fees ..

It has therefore been plain since April 2013, on the face of the Statements of Case, that the authenticity of the Management Agreement was in issue, and was a matter which Mr Bisping required Mr McGann to prove.

The Management Agreement was disclosed in Mr McGann's first disclosure list served on 15 November 2013. The witness statements thereafter served by the parties reflected the fact that the authenticity of this document was in dispute. Mr McGann gave evidence about the execution of the Management Agreement in his first witness statement dated 25 March 2014, and served witness statements from Mr Lee Gwynn (dated 6 March 2014) and Mr Mike Wood (dated 16 March 2014) to the effect that they had witnessed the execution of the Management Agreement. Mr Bisping's first witness statement, dated 31 July 2014, contained evidence (in paragraphs 20 to 23 and 49) supporting his pleaded case that he had not signed the Management Agreement in July 2005, but had signed a different agreement with "Wolfslair" in May 2005.

On 8 September 2014, Mr Bisping served a Re-Amended Defence and Counterclaim, which contained the following additional paragraph relating to the Management Agreement:

7A. .. It is not admitted that the Management Agreement was signed by the Defendant and it is also not admitted that the Management Agreement in the form relied upon was presented to the Defendant for signing and accordingly it is not admitted that any of the acts relied upon amount to acceptance of the offer said to be contained in the Management Agreement by conduct ..

As to the invoices and other documents relating to expenses, Mr Bisping's Re-Amended Defence & Counterclaim was even more blunt, pleading in terms in paragraph 30A that the letters that were alleged to have enclosed the invoices "are recent fabrications made in support of these proceedings and were not created or sent at the time they purported to have been" .. "A number of the supporting documents are patent fabrications" .. "The remainder of the supporting documents have been recently created by or at the request of the Claimant for the purposes of these proceedings" .. "The claim for expenses herein against the Defendant is bogus and without foundation". Again, the witness statements served on behalf of the parties amply demonstrate that both sides considered that the authenticity of these documents was a live issue.

Mr Graeme McPherson QC (the leading counsel then instructed on behalf of Mr McGann) prepared a 53-page Written Opening Submission dated 4 October 2015 for use at the trial listed to begin on 5 October 2015. It is plain from the terms of that document that the case then being put forward on behalf of Mr McGann was that the authenticity of the Management Agreement and of the various invoices and supporting documents relied on by Mr McGann was in dispute, and that these matters were issues that the court would have to resolve on the evidence at trial. Mr McPherson QC's Written Opening Submission made no reference to CPR 32.19.

It therefore seems clear that, until the moment that Mr Lawrence and Ms Roberts served their Written Opening, both sides had been preparing for trial on the shared assumption that the authenticity of these documents was in issue.

CPR 32.19 provides as follows:

Notice to admit or produce documents

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under ...