Crane T/A Indigital Satelite Services v Sky in-Home Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 03 July 2008 |
| Neutral Citation | [2008] EWCA Civ 978 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2007/0591 & (A) |
| Date | 03 July 2008 |
[2008] EWCA Civ 978
The Chancellor of The High Court
Lady Justice Arden and
Lord Justice Dyson
Case No: A3/2007/0591 & (A)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (CHANCERY DIVISION)
Briggs J
Royal Courts of Justice
Strand, London, WC2A 2LL
Duncan Macpherson (instructed by Messrs Johnson Sillett Bloom) for the Appellant
Jasbir Dhillon (instructed by Herbert Smith LLP) for the Respondent
Hearing dates : 2/3 July 2008
At the outset of the hearing of this appeal, we heard the application of Mr Crane to amend his appellants' notice. Mr Duncan Macpherson, who appears for the Mr Crane (but who did not appear below), accepts that Mr Crane seeks to raise a new case. Mr Jasbir Dhillon, for the respondents (“SHS”), opposes the application principally on the basis that it raises issues not investigated at trial and that it would be thus unfair to SHS if the amendments were granted. The authorities show that permission should not lightly be given for a new case to be raised in this court. The question we have to decide is whether the factors in this case justify giving permission to amend in a manner that would enable Mr Crane to raise what is admittedly a new case.
The background
Mr Crane traded as Indigital Satellite Services. Prior to February 2005 he was engaged in the business of installing and maintaining equipment used by consumers for the reception of Sky television. He entered into a contractual arrangement with SHS. This was terminated in February 2005. He then brought these proceedings to obtain financial relief under the Commercial Agents (Council Directive) Regulations 1993 (SI 1993 No. 3053) (“the Commercial Agency Regulations”). These regulations are designed to implement Council Directive 86/653/EEC (“the directive”) on the coordination of the laws of the member states relating to self-employed commercial agents. One of the objects of the directive was to enhance the position of intermediaries involved in the supply of goods (but not services) on behalf of a principal. In certain circumstances, on termination of the relationship, compensation is payable to the agent even though the termination did not involve a breach of contract. One of the issues sought to be raised by Mr Crane on this appeal is whether the relationship between Mr Crane and SHS, though not one of agent and principal, nonetheless fell within the mischief of the directive. At this stage of the appeal, we have not had detailed submissions on the mischief to which the directive is addressed. I thus note this submission without elaboration.
The trial took place before Briggs J. By his order of 13 February 2007, the judge dismissed the claim. That is the order now under appeal.
In order to receive Sky television, a customer must obtain a set top box and a minidish (satellite dish) to be placed on the outside of his premises. We are concerned with two sorts of equipment packages offered by Sky. The first is the Sky box package, which contains a standard set top box. The second is a Sky + box package. This includes a set top box with a personal video recorder, which contains a hard disc on which programming can be recorded. Broadly speaking, the Sky group had different arrangements of each sort of setup package. For the Sky box package, it alleged that the customer could approach either Sky or an authorised sky agent (“ASA”). Whenever an ASA identifies a customer, it is said that the ASA is obliged to sell as principal a Sky box package to SHS immediately before SHS delivered the same box to the customer. With the Sky + box package, Sky is only concerned with box packages supplied by BSkyB Ltd on contract to the customer. It is not concerned with Sky + box packages supplied to the customer by an ASA. By 2005, the majority of installations were of Sky + boxes rather than the basic set-top box. Mr Crane contends that it is these products that attract goodwill (and that point is relevant for instance to the question whether Mr Crane's activities were secondary activities). Accordingly, although the judge found that he was an agent of Sky for the purposes of the sale of set top boxes, this did not greatly assist his case.
Mr Crane entered into an agreement dated 15 December 2003, called the “customer offer purchased an agency agreement” (“COPA”), with SHS. COPA was supplemented by a number of other related agreements but this judgment is not concerned with them.
The judge took the view that the case turned not so much on disputed questions of fact as on the application of the regulations to the contractual arrangements between the parties. The first issue was whether Mr Crane's agency extended to the sale of Sky + boxes. The judge noted that:
“13] It will be immediately apparent that COPA contains express terms negating the creation of any agency of Mr Crane for the sale of Sky+ boxes, and cl 5.2 required any authority of Mr Crane to do anything on behalf of SHS to be in writing. Mr Crane's case, to the extent that it was pursued in closing, was that notwithstanding those terms, he later obtained such written authority in the form of a series of 'special offer' letters written to him and other ASAs by BSB between July and December 2004, and that his authority in relation to Sky+ boxes is in some way evidentially fortified by the fact that one of the distributors from which he sought to acquire Sky+ boxes was under instructions from the Sky Group only to sell them to ASAs.”
In other words, Mr Crane's case on the Sky + box packages turned on whether COPA was varied by the parties in writing by the so-called “special offer” letters. He did not argue that the regulations would apply even if Mr Crane was not an agent for English law purposes if the situation was within the mischief to which the directive applied. The judge held on this issue that Mr Crane was at no time authorised to sell a Sky + box as agent of the SHS.
There was then a question about the validity of the regulations, with which I am not concerned. The judge then dealt with the question whether Mr Crane was a commercial agent within regulation 2(1). The judge held that Mr Crane was a commercial agent of SHS within the meaning of reg 2(1) in respect only of the sale of the standard set top box, and not Sky +. The next issue concerned the application or otherwise of the exclusion in the regulations of agents engaged in “secondary activities”. The judge held Mr Crane's activities were secondary, but it is unnecessary to summarise his reasoning. He then held that the termination of the agency was within regulation 18(a) (termination on agent's default). Finally, he held that if Mr Crane had been entitled to financial relief it was for compensation rather than an indemnity. Again I am not concerned with the judge's reasons on these issues.
In his original appellant's notice, Mr Crane challenged the judge's conclusions on secondary activities and on termination. However, Mr Crane's skeleton argument made it clear that he intended to challenge the judge's conclusions on a wider basis. No steps were taken to amend the appellant's notice until his solicitors issued an application to amend the grounds of appeal on virtually the eve of the appeal. Most relevantly for the purpose of this application, Mr Crane attacks the judge's decision as to whether he was a commercial agent for the purposes of the regulations with respect to Sky + boxes. The second ground as proposed to be amended includes the following passage:
“The judge should have considered all the relevant facts including that:
a. The appellant was the agent of the respondent under the law of England and Wales for the promotion, sale, supply and installation of Sky television services in all respects save for the supply of Sky + equipment.
b. The appellant was a self-employed intermediary with continuing authority from the respondent to negotiate the supply of sky + equipment; further or alternatively
c. The respondent prevented the appellant in law firm further or alternatively in practice for dealing with the consumer freely in the supply of Sky + equipment alternatively it restricted such freedom to a considerable degree; further or alternatively
d. There would be no reason for the customer to believe that the appellant was acting in a different capacity when supplying sky + equipment to that customer when he would otherwise acted on behalf of the respondent and the promotion, sale and installation of Sky television services
and having taken into account the protective stance of the regulations of the learned judge should have concluded that the appellant was the commercial agent of the respondent in the supply of Sky + equipment.”
Submissions
Mr Macpherson emphasises that Mr Crane's case relies on a more purposive interpretation of the regulations than that advanced to the court below and accepted by the judge. Mr Crane's case is that the concept of a commercial agent has an autonomous meaning in Community law and, if a particular situation is within the mischief addressed by the directive, it does not matter whether or not the intermediary in question is an agent for the purposes of English law. Thus Mr Crane's supply of Sky + equipment could give rise to the application of the directive even though under it Mr Crane was not an agent for the supply of this equipment. Mr Crane does not challenge the judge's ruling on this point.
Mr Macpherson seeks to meet the difficulty that Mr Crane's new case might...
To continue reading
Request your trial
-
Ahmad Hamad Algosaibi and Brothers Company v Saad Investments Company Ltd, Al Sanea and Others
...CLC 430; [2014] 2 All E.R. 926; [2014] 2 W.L.R. 948, referred to. (18) Crane (t/a Indigital Satellite Servs.) v. Sky In-home Ltd., [2008] EWCA Civ 978, referred to. (19) Crinion v. IG Markets Ltd., [2013] EWCA Civ 587; [2013] C.P. Rep. 41, considered. (20) David Payne & Co. Ltd.......
-
Sheila Ann Grange v Antony Allen Quinn and Another
...Ltd [2005] EWCA Civ 563 at [58] to [69], cited by Gloster J in paragraphs 104 and 105 of her judgment below. 59 In Crane T/A Indigital Satellite Services v Sky In-Home Ltd [2008] EWCA Civ 978 at [22], I held: "The circumstances in which a party may seek to raise a new point on appeal are no......
-
Jones v Environcom Ltd and Another
...explanation had been afforded them when in the witness box." 31 More recently in the era of the CPR, in Crane t/a Indigital Satelite Services v. Sky In-home Limited [2008] EWCA Civ 978, this jurisprudence and its principles were revisited at [18] – [23] in the judgment of Arden LJ. Among th......
-
David Frederick Cuckow v AXA Insurance UK Plc
...v Dass [2019] EWCA Civ 360 at paras. 16–17 and the judgment of Arden LJ in Crane (t/a Indigital Satellite Services) v Sky In-Home Ltd [2008] EWCA Civ 978 at [21]: “in circumstances such as the present, where there has been no disclosure relative to the new way in which the appellant seeks......