Chief Constable of the Greater Manchester Police v Wigan Athletic AFC Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MANN,Mr Justice Mann |
| Judgment Date | 21 December 2007 |
| Neutral Citation | [2007] EWHC 3095 (Ch) |
| Docket Number | Case No: HC06C02193 |
| Date | 21 December 2007 |
| Court | Chancery Division |
[2007] EWHC 3095 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Mann
Case No: HC06C02193
Mr. N. Berragan (instructed by Weightmans LLP) for the Claimant.
Mr. A. Lewis and MS. S. Wilkinson (instructed by DLA Piper UK LLP) for the Defendant.
Hearing dates: 8 th, 9 th, 10 th, 11 th, 15 th, 16 th, 18 th, 19 th October 2007
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
This is a claim in relation to monies which the claimant (“GMP”) claims are due from the defendant (“the club”) in respect of policing activities carried out by GMP at the stadium used by the club for its association football matches. The club is the well-known premier league football club. The amount of the moneys in dispute has actually been paid by the club to GMP, but under protest. The form of the action is a claim by GMP for those moneys with a claim for their return by the club. At the heart of the claim is the question of the extent to which GMP was entitled to those monies.
The source of the claim
The source of the claim is easy to describe, though its application to the facts of this case presents significant difficulties. In this section I will merely describe the legal source of the claim and, very much in outline, how it arises.
A person or organisation who wishes to stage a large event attended by many thousands of people may feel that the number and nature of the audience, and the activities to be carried out, require the attendance on the private property concerned of members of the police force in order to keep order and to provide other services which can best be provided by the police. They are not entitled without more to call upon the services of the police for this purpose. They can, however, ask for “special police services” and reach an agreement as to the payment for those services. Authority indicates that such arrangements could be properly made at common law, but the position is now confirmed by statute. The current provision is s.25 of the Police Act 1996:
“25. Provision of special services
(i) The chief officer of police of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority.”
Large football matches are obvious occasions on which the attendance of police in the ground is conducive to the smooth running of the fixture, and such clubs are obvious, and frequent, persons who wish to avail themselves of those services. As well as the obvious need for such policing, modern clubs require a safety certificate, and the safety certificate regime requires them to obtain proper policing. If they did not do so then they would lose their safety certificates and the right to play at their grounds. The club in the present case falls into the category of clubs which require policing for those reasons. It had for some years had an agreement with GMP to provide such policing, and appropriate charges were made on an agreed scale. However, shortly before the beginning of the 2003/2004 season, GMP put forward a proposed charging structure which significantly increased the charges which GMP indicated that it would be making because it proposed both a material increase in the level of policing at fixtures, and in the police that were to be charged for. The club did not accept that those charges could and should be made, and it offered to pay at rates based on the then current charging rates but assuming the level of usage of police offers as was reflected in previous years. The parties went the whole of the season without reaching an express agreement on the way forward, and arrears built up (on the basis of the calculations and claims of the GMP). During that season the police provided policing for home fixtures despite the lack of final agreement. The same difference of opinion arose at the beginning of the next season (2004/2005) and further arrears built up. Again, policing was provided for the season. Before the end of the season, however, pressure was put on the club by the football authorities to make payments, and under those circumstances the sums claimed by GMP were paid under protest. They amounted to almost £300,000.
The principal element in the dispute concerns the number of officers charged for, and one important element of dispute within that is a dispute as to whether officers who are outside the stadium itself can be charged for. Accordingly, the local geography is of some significance, and I therefore need to describe it.
Geography and land holdings
The club plays at a stadium known as the JJB stadium in Wigan. The stadium lies to the west of Wigan town centre. Between Robin Park Road and the Douglas River (which at this point runs very close to the Leeds/Manchester canal) there is an area comprising a retail park and the JJB stadium, together with certain other sports facilities. The layout can best be seen from the plan which I annex to this judgment. The roads shown as Anjou Boulevard and Loire Drive are apparently dedicated as highways. There is a footpath which skirts the southern end of the stadium, running down from the canal bridge, passing over the small bridge to the east and passing round the south-western corner. For the most part its line is probably 10 feet away (at least) from the back of the south stand. There is another footpath which crosses Stadium Way some way to the north.
The club does not have any interest in the stadium greater than a licence. The freehold of the land is (or at least in 1999 was) vested in the local authority (Wigan Borough Council). On 4 th August 1999 Wigan Borough Council granted a lease to Wigan Football Company Limited (“the Stadium Company”), a company in which the Council had a 10% interest and in which the remaining 90% was owned by, or was under the control of, Mr David Whelan, a prime mover in the club. The significant provisions of the lease were as follows:
i) It was for a term of 99 years from 4 th August 1999.
ii) The demised premises comprised an area which is outlined in red on the plan annexed to this judgment. The first schedule, which contains a verbal description of the parcels, describes the land “together with the premises erected thereon comprising the Stadium indoor soccer centre, a pitch and associated car parking and roadways, more particularly shown on the Layout Plan”.
iii) There was an express right of way over the northernmost portion of Stadium Way for the stretch before it turns to run parallel to the river Douglas.
iv) One of the exceptions and reservations was a right of way over all roads “constructed or to be constructed upon the Retained Property subject to the right of the Tenant to place barriers across the road serving the car park on the north bank of the River Douglas”. The reference to retained property must be a mistaken reference to the demised property.
v) Clause 5.10 contains user provisions. It provides that the tenant shall not use the demised premises other than in accordance with the provisions of that sub-clause. Sub-clause 5.10.1 provides:
“The tenant shall use the Demised Premises solely for the purposes described in the Sixth Schedule hereto and for no other purpose without the prior written consent of the landlord… such consent not to be unreasonably withheld or delayed.”
Although that looks like the familiar form of user clause which provides restrictions without any positive obligation to use it in a positive manner, a proper reading of the sixth schedule reveals that certain positive obligations are contained in it. Thus it is provided that:
“The Stadium shall be used as a sports stadium for the playing of both rugby (league and union) and football (soccer) and shall be used by not less than two of the principal sporting clubs in the Borough of Wigan.
The Stadium shall have the following facilities which shall at all times be maintained to any standard stated.”
The Schedule then sets out various standards including the provision of refreshment at media facilities and police accommodation. It also provides:
“ Car Parking shall be available for between 2,500 and 3,500 cars, sub-divided into home supporters, visiting supporters and executive/directors areas.”
Thus there is a positive obligation to provide car parking.
vi) Paragraph 5.11.1 provides that the Stadium shall be made available by the tenants to the club and to a rugby club (who play as Wigan Warriors) for all their home fixtures and for certain other events, the stadium being made available by licence only. Clause 5.14.7 provides that the Council shall approve the form of any licence.
vii) Clause 5.9.1 contains a covenant on the part of the tenant not to do anything that would be a nuisance or annoyance to adjoining owners, with a proviso that use of the demised premises for a use permitted by the lease would not itself constitute a nuisance. Paragraph 9.5.2 provides:
“The Tenant shall carry out all reasonable consultations with the Landlord, adjoining owners and occupiers, the police and fire authorities and all appropriate safety officers and take full regard to [seek] their views and advice to ensure that the use of the Demised Premises and in particular the Stadium is such that nuisance, damage, annoyance, disturbance and inconvenience to adjoining landowners, occupiers and visitors to the Demised Premises and adjoining or neighbouring land is...
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