Marlow (t/a Crown Hotel) v Exile Productions Ltd (Damages)
| Jurisdiction | England & Wales |
| Court | Queen's Bench Division |
| Judge | Mr Justice CRESSWELL |
| Judgment Date | 11 November 2003 |
| Neutral Citation | [2003] EWHC 2631 (QB) |
| Docket Number | Case No:HQ02X02284 |
| Date | 11 November 2003 |
[2003] EWHC 2631 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cresswell
Case No:HQ02X02284
Mr. S Cakebread (instructed by Messrs. Hillyard Simpson Hardacre) for the claimant
Mr. T Croxford (instructed by Messrs. Addleshaw Goddard) for the defendants
Hearing dates : 2 —13 October
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.
The Honourable Mr. Justice Cresswell
Contract for one performance by a well known singer; alleged collateral contracts; issue as to who repudiated the written contract; alleged economic torts (procuring a breach of contract and unlawful interference); the construction of a limitation of liability clause; whether the limitation of liability clause satisfied the requirement of reasonableness having regard to the provisions of UCTA; the appropriate measure of damages; actual costs incurred; loss of profit that would probably have been made on the day of the concert; loss of profit that would probably have been made from ancillary sales; consideration of a claim for loss of trading profits said to be continuing.
Mr Gary Marlow, the claimant, is the owner of The Crown Hotel, Everleigh, Marlborough, Wiltshire. Mr Van Morrison is a well known singer and performer. He is the sole director and shareholder of Exile Productions Ltd ("Exile").
By a contract in writing dated 21 May 2002 between Mr Marlow and Exile it was agreed that Mr Van Morrison would appear for one performance at The Crown Hotel on Saturday 3 August 2002 for a guaranteed fee of £20,000.
On 1 July 2002 O.J. Kilkenny & Co Chartered Accountants, to Exile wrote to Mr Marlow as follows:-
it has come to our attention that you have breached clause 3 (a) of Rider A, a fundamental term of the contract. As a result of this blatant breach of contract our client will now not perform at The Crown Hotel on 3 August…"
On 4 July solicitors on behalf of Mr Van Morrison and Exile wrote to the claimant's solicitors :-
"…your client will be very well aware of his blatant breaches of clause 3 (a) of Rider A of the contract. Your client has totally disregarded his fundamental contractual obligation to our clients not to use Van Morrison's name "directly or indirectly to sponsor or be tied in with any commercial product, company or service including any newspaper "and has failed to secure Exile's approval " in advance and in writing for all advertising and promotional material in any form whatsoever used in conjunction with this engagement". We would refer you to the enclosed sample of newspaper extracts which provide clear and categoric illustrations of your client's breach of contract. As 0 J Kilkenny & Co have already pointed out, our clients continue to reserve their rights, particularly in relation to clause 1 (b)."
On 15 July the claimant's solicitors replied :-
"Our client has reluctantly concluded that Mr Van Morrison is not prepared to appear on 3 August 2002… such action on Mr Van Morrison's part is a clear breach and wrongful repudiation of the agreement dated 21 May 2002 and the collateral contract between Mr Van Morrison and our client. Further, such action
by Mr Van Morrison has induced the breach of the agreement
dated 21 May 2002 and unlawfully interfered with our client's business. Our client is left with no alternative but to treat the agreement and collateral contract as discharged and proceed with a claim for damages against your clients…"
Mr Marlow's case is that by the letter dated 15 July 2002 he accepted Exile's wrongful repudiation of the contract and validly rescinded the same. Further he contends that Mr Van Morrison was in breach of a collateral agreement and procured a breach of the contract dated 21 May 2002 and/or unlawfully interfered with Mr Marlow's business at The Crown Hotel.
Exile's and Mr Morrison's case is that Mr Marlow was in breach of a representation and warranty (that advertising would only be by way of inclusion of details in a regular newsletter to individuals on Mr Marlow' s private mailing list) and in breach of Rider A clause 3 (b) of the contract dated 21 May 2002 and that the breaches were fundamental, the claimant thereby repudiating the contract, alternatively entitling Exile to rescind the contract. The defendants contend that they accepted the alleged repudiation of the contract, alternatively rescinded the same by the letter dated 1 July 2002.
The contract dated 21 May 2002
The contract between Mr Marlow (called "the Management") and Exile (called the "Artist") dated 21 May 2002 provided so far as material:-
"The Artist agrees to appear for one performance at The Crown Hotel on Saturday 3 August 2002 for a guaranteed fee of £20,000…
It is agreed that the artist shall perform for TBA.
The Artist's equipment shall be allowed access to the venue from TBA.
The Artist's on stage time shall be no later than TBA.
Equipment set-up and sound check times shall be agreed with the Artist's Production Manager.
NB: All timings, including show times, must be confirmed in writing with EXILE prior to the engagement and no timings are to be published on tickets, posters or advertising without the express consent of EXILE.
6. The attached Rider A is an integral part of this contract…
Rider A
RIDER A TO CONTRACT 0226 DATED 21 MAY 2002 BETWEEN GARY
MARLOW ON BEHALF OF THE CROWN HOTEL (HEREINAFTER CALLED
THE PROMOTER) AND EXILE PRODUCTIONS LIMITED (HEREINAFTER
CALLED EXILE) PROVIDING THE SERVICES OF VAN MORRISON
(HEREINAFTER CALLED THE ARTIST)
b) In the event of any breach by the Promoter of any of the provisions set forth herein., the Artist may cancel the performance without further liability to the Promoter and, in addition to any other available remedies hereunder, the Promoter shall be required to pay the full contract price hereunder. In the event of any conflict between the terms of this Rider and the attached Contract, the terms of the Rider shall prevail.
…
c)… Failure to comply with any of the terms contained within, including failure to provide any service stated herein as the responsibility of the Promoter, adherence to timings as stipulated or payment dates, shall be deemed to be a significant, breach of the contract unless fully agreed in writing in advance with Exile and may result in cancellation of the performance….
…
Billing
b) There shall be no support act/s without Artist's prior written consent.
Rights
a) The Promoter shall have the right to use the name and approved pictures and photographs of the Artist solely for the promotion of the performance hereunder. The name of VAN MORRISON shall not be used directly or indirectly to sponsor or be tied in with any commercial product, company or service including any newspaper, magazine, radio or television station; nor shall there be a sign, banner, product placement/branding, or notice of any kind on or near the stage at any time during the performance, advertising any commercial product, company or service. Exile must approve in advance, in writing, all advertising and promotional materials, in any form whatsoever, used in conjunction with this engagement.
b) Any bar/beverage selling points within the auditorium must remain closed for the duration of the Artist's performance.
f) The Promoter will use his best endeavours to: —
i) promote and publicise the engagement
ii) sell all tickets for the engagement
…
Box office/Ticket Procedures/Payment
a) capacity, gross potential and ticket breakdown. The specific capacity, gross potential and ticket price breakdown of the facility where the Artist is to perform under this agreement must be clearly printed on the face of the contract to which the Rider is attached.
b) Non-percentage engagement. In the event that the terms of this engagement do not include percentage participation by the Artist, it is agreed that the statement of potential gross set forth on the face of the contract is a material condition. In the event that the gross box office receipts and/or admission prices exceed those stated on the face of this contract, then Promoter shall pay to Artist, on the night of the engagement, the total difference between the agreed upon potential gross and the actual gross, if the actual gross is higher.
f) Payment
vi) Notwithstanding anything to the contrary contained herein in the event of any breach by Artist the Promoter's damages shall be limited to the compensation payable to Artist hereunder in respect of the engagement and the Promoter shall not be entitled to any other damages (including without limitation damages for loss of profit or consequential loss)."
) Default By Promoter
If Promoter fails or refuses to comply with any of the material provisions contained in this Agreement and this Rider including but not limited to …i) artist or its representative in Artist's sole discretion, may thereupon terminate this agreement without liability of any kind to Promoter, (including the obligation to mitigate Artist's losses); ii) artist shall have no further obligation to perform the Agreement; iii) artist shall retain all amounts theretofore paid to it by Promoter; iv) promoter shall remain liable to Artist for any additional compensation herein provided including expenses incurred any guaranteed fee and any other monies and also for any costs liabilities or losses in respect of the performances; v) artist shall also be entitled to exercise all remedies then available to it at law or in equity.
Dramatis Personae
I set out below a chronology of events relevant to this case.
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