Joseph and Others v Spiller and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Hooper,Lord Justice Wilson |
| Judgment Date | 22 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1075 |
| Docket Number | Case Nos: A2/2009/1130 & A2/2009/1130(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 2009 |
[2009] EWCA Civ 1075
Before: Lord Justice Pill
Lord Justice Hooper and
Lord Justice Wilson
Case Nos: A2/2009/1130 & A2/2009/1130(A)
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE EADY
William Bennett (instructed by Howard Kennedy) for the Claimants
Paul Epstein QC and David Price (instructed by David Price Solicitors & Advocates) for the Defendants
Hearing date: 30th July 2009
Lord Justice Pill:
This is an appeal against an interlocutory judgment of Eady J dated 22 May 2009. The claimants are members of a musical group and the first defendant is one of two directors of the second defendant, 1311 Events Limited, which provides entertainment booking services. The claimants allege that words published on the defendants' website for several weeks up to June 2007 were defamatory of them. They claim general damages and also special damages in respect of two engagements said to have been cancelled by hirers of their services who had read the words complained of.
In their interlocutory application, the claimants sought to strike out all three substantive defences pleaded, that is, justification, fair comment and qualified privilege. In a reserved judgment, the judge struck out the defences of fair comment and qualified privilege. He also ordered that those parts of the amended defence of justification which rely on a breach of the re-engagement term alleged to be a part of the contract between the parties be struck out. Permission was granted to the defendants to add a new paragraph to the amended defence. The appeal is against the findings in relation to justification and fair comment. The trial of the action, formerly fixed for 8 June 2009, has been adjourned until February 2010.
The words on the website complained of are:
"1311 Events is no longer able to accept bookings for this artist as The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract.
…
What we say:
The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night At The Movies has advised 1311 Events that the terms and conditions of '… contracts hold no water in legal terms' (27.03.07). For this reason, it may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for The Gillettes and Saturday Night At The Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.
Instead, we recommend any of the following professional bands and artists …"
The judge set out the background facts at paragraphs 4 to 10 of his judgment:
"4. It is pleaded that the Claimants would all have been identifiable by "a large but unquantifiable number of readers of the words complained of". The meaning relied upon in the particulars of claim is that:
"… the Claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies."
There is a claim for general damages and also for special damages in respect of two engagements said to have been cancelled by hirers of their services who had read the words complained of.
5. Before I turn to the defences now under challenge, it is appropriate to set out the background, much of which is in itself uncontroversial.
6. On 13 October 2004 the Claimants entered into a contract with the Second Defendant. Its function was to find hirers for the Claimants' services, but it did not become the Claimants' exclusive agent. They remained on the books of a number of other agents.
7. In April 2006 it was agreed that the Claimants (as The Gillettes) were to perform on 31 December 2006 at a restaurant in Leeds called Bibis. The concert went ahead but the First Claimant describes in his witness statement how the marketing manager of the restaurant, Tracy Dawes, presented herself before they had even got into the building and said, "Whoever your agent is, he is a total tosser, ignorant, rude and aloof". She said that when she had asked the First Defendant, Mr Spiller, for publicity material about The Gillettes for promotional purposes, he replied, "You have already received the marketing material, and can I suggest you go back to your office and have a look for it". This apparently prompted Ms Dawes to say that she would never use 1311 Events again.
8. It appears that the concert went satisfactorily and, in February 2007, Ms Dawes contacted the First Claimant in order to book The Gillettes for a further performance in May of that year. This was done without reference to the Second Defendant, but the Claimants agreed to perform. This is said by the Defendants to be in breach of a "re-engagement clause" in their contract with the Claimants. I shall return to this shortly.
9. When the First Defendant found out about Ms Dawes' second booking, he sent an email to the First Claimant on 27 March 2007, claiming that legal proceedings would be taken against them and that he would report the Claimants to the Musicians' Union because of a breach of a contractual obligation to the following effect:
"The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events."
He added that the Defendants would not be representing the Claimants any longer, "as we can only work with professional artists who can accept our terms and conditions".
10. The First Claimant responded the same day in these terms:
"Hi Jason
It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artitses [ sic] alike with work, one does not work without the other.
You came to me Jason after viewing the quality of our show, your contract is mearly [ sic] a formality and holds no water in legal terms. You should consider looking after your clients/ venueus [ sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [ sic] the benefits from others hard work, that does not hold any legal value any more. You [ sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary.
I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms or conditions.
Thers [ sic] is one outstanding show with you guys Aug 4th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee £900.00 + vat. TOTAL = £1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancelation [ sic] of the show. Please confirm this can be organized within 7 days or I will cancel the date.
I look forward to any legal trysts.
Kind regards
Craig (On behalf of The Gillettes)."
The contract of 13 October 2004 was made on line. On the second defendant's website is a proforma with a series of boxes to be filled in and questions. It is in four parts and is introduced by this statement:
"This 4 Part form relates to important information about how 1311 Events operates and we ask that you read all of the following information. Some of these details affect the way 1311 Events will operate in the future and, by law, we now require signed confirmation that 1311 Events Ltd can represent your act and use the information provided by you. You can either complete this form online or print it and return via post to the address above."
In an email to the second defendant on 13 October 2004, the claimants described the subject as "artist agreement form" and added "below is the result of your feedback form". All questions were answered and the appropriate consent was given to the second defendant acting on the claimants' behalf.
Part 3 of the proforma is headed 'Events Procedure' and, as would be expected, provides a procedure for dealing with enquiries, bookings, feedback, commission and payment. It includes this underlined sentence:
"1311 Events full Terms & Conditions can be found here >>> "
The document to which reference is made purports to set out terms and conditions as between the second defendant and hirers of the artists' services. It is stated:
"These terms and conditions constitute our agreement with you for the hire of artists featured on the 1311 Events portfolio. These are referred to as our 'terms'. It does, however, refer to 'performance contracts' between the client and the band, sets our their respective responsibilities and provides for a possible action 'by the client against the artist for non-fulfilment of their contract'"
The provision relied on by the second defendant, which appears on the third page of the document provides:
"RE-ENGAGEMENT
The client and artist agree that subsequent books within a 12 month period, from any artist provided by 1311 Events will be booked directly with 1311 Events and not with the artist directly."
The defendants claim that the "re-engagement clause" is a term of the contract between them and the claimants and that, by agreeing to perform at Bibis in May 2007 without reference to the defendants, the claimants were in breach of...
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