Mr H TV Ltd (Formerly known as Can Associates TV Ltd) v ITV2 Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Flaux,The Honourable Mr Justice Flaux |
| Judgment Date | 08 October 2015 |
| Neutral Citation | [2015] EWHC 2840 (Comm) |
| Docket Number | Case No: 2012 FOLIO 692 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 08 October 2015 |
[2015] EWHC 2840 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building
7 Rolls Building
Fetter Lane
London EC4A 1NL
The Honourable Mr Justice Flaux
Case No: 2012 FOLIO 692
Mr Max Mallin (instructed by Archerfield Partners LLP) for the Claimant
Mr Deepak Nambisan and Mr Daniel Edmonds (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for the Defendant
Hearing dates: 7–9, 13–16 and 20–23 July 2015
Approved Judgment
Introduction
The sole director and shareholder of the claimant company is Mr Neville Hendricks. His business and that of the claimant is the production of reality television programmes featuring the real lives of popular show business personalities. Specifically, for some seven years until the summer of 2011, when the dispute with which this case is concerned crystallised, the claimant had produced a series of reality television programmes featuring Mr Peter Andre the singer, initially concerned with his marriage to the model Katie Price (formerly known as Jordan), then after their divorce, featuring him and his life in programmes called "Peter Andre: The Next Chapter" and "Peter Andre: Here to Help". The claimant also produced reality television programmes featuring the singer (and former member of the group Atomic Kitten) Kerry Katona called "Kerry Katona: The Next Chapter".
These programmes featuring Peter Andre and Kerry Katona were broadcast by the defendant ITV2, part of the ITV group of television channels, with whom the claimant had a series of television production agreements. The most recent of these with which the dispute is concerned was an ITV2 Production Agreement contained in a letter from ITV2 to the claimant dated 9 December 2010. In respect of the programmes featuring Mr Andre, the agreement was for three years, with Peter Andre: The Next Chapter series 4 and 5 and Here to Help series 1 to be produced in the first year, Peter Andre: The Next Chapter series 6 and 7 and Here to Help series 2 in the second year and Peter Andre: The Next Chapter series 8 and 9 and Here to Help series 3 in the third year. In respect of the programmes featuring Kerry Katona, the agreement was for two or three years, with Kerry Katona: The Next Chapter series 2 to be produced in the first year and The Next Chapter series 3 in the second year, with series 4 to be made in the third year, subject to ITV2's right to break after the end of year As the numbering of these series suggests, three series of Peter Andre: The Next Chapter and one series of Kerry Katona: The Next Chapter had been successfully produced by the claimant and had been or were going to be broadcast by ITV2 pursuant to earlier agreements.
The manager of both Peter Andre and Kerry Katona at that time was Claire Powell, whose company CAN Associates worked in close association with the claimant. Indeed the "CAN" in the names of both companies was an abbreviation for "Claire and Neville". Mr Hendricks and Ms Powell had been both business and personal partners for some years and had a son together who was six in 2011. Their physical relationship came to an end during the course of 2010, but initially the business relationship appears to have continued relatively unaffected. Both Mr Hendricks and Ms Powell were always involved in the editing process for each of the programmes produced before the programmes were sent to ITV2 as broadcaster. The final decision as to editing the programmes rested with ITV2.
It was the unchallenged evidence of Mr Hendricks and his former personal assistant and colleague, Nicola Partridge, who also gave evidence, that the editing process at the claimant, involving as it did the participation of both Mr Hendricks and Ms Powell, remained unchanged throughout the production of Peter Andre: The Next Chapter series 4, which was delivered to ITV2 on dates between 14 March and 6 June 2011, and would have remained unchanged in the production of series 5 had that ever been produced by the claimant. For reasons which will require elaboration hereafter, the series was never produced by the claimant, since on 17 August 2011, ITV2's solicitors wrote to the claimant terminating the Production Agreement for repudiatory breach by the claimant.
It is clear that, by some time in May 2011, relations between Mr Hendricks and Ms Powell had deteriorated considerably. It will be necessary to make detailed findings about the events between May and August 2011, but in broad terms they can be summarised as follows. What appears to have particularly incensed Mr Hendricks was the discovery that Ms Powell had taken her latest boyfriend Mr Drew Rush (who worked for the security company employed by the claimant) with her to Dubai during filming of a calendar shoot with Mr Andre and other clients and that they had been conducting their affair whilst his six year old son was around. He assumed that other people, including Mr Andre, had known about the affair but kept it from him. Mr Andre described in evidence an occasion when he was filming Here to Help in Harrow, probably on 19 May 2011, when Mr Hendricks had come to his dressing room and remonstrated about the affair between Ms Powell and Mr Rush.
By the beginning of June 2011, it is clear that Ms Powell was looking for an opportunity to replace the claimant as the production company for the Peter Andre programmes. She told ITV2 on the telephone and at a meeting on 20 June 2011, that Mr Andre had issues with Mr Hendricks. What those issues were was never explained to Mr Hendricks. At the meeting she suggested that a company other than the claimant be used to produce the Peter Andre programmes, but ITV2, through Ms Sarah Clarke, Director of Business and Legal Affairs, did not take her up on this suggestion.
At around the same time, on 17 June 2011, the management agreement between Ms Powell and Kerry Katona came to an end in somewhat acrimonious circumstances. The popular press picked up a rumour, which was untrue, that Ms Katona was having an affair with Mr Hendricks. He considered, with some justification that this rumour was being generated and spread by Claire Powell or people who worked for her or with whom she was on good terms. Ms Katona then consulted Max Clifford who, before his recent disgrace, was the supremo of celebrity management and he ensured that the rumour ceased.
It was this rumour and his anger about the affair with Drew Rush which led Mr Hendricks on 23 June 2011 to open a Twitter account entitled @TheNevCan. Within a short period of time he was in communication with two other twitter users, @LLuke33 and @KMaddock, neither of whom has been identified but both of whom appear to have been sufficiently close to Ms Powell and her circle of friends, including Mr Andre, to have been able to tweet intimate details of their private lives, often in the most scurrilous and vitriolic terms. Mr Hendricks himself tweeted some pretty unpleasant tweets over the period from 26 June to 17 August 2011. Although it is fair to say that most of his bile was reserved for Ms Powell, there were a few tweets which were directed at Mr Andre.
Although attempts were made to resolve the differences between the claimant and CAN Associates/Mr Andre and there were two mediation sessions on 27 July and 9 August 2011 which seem to have made some progress towards resolution, ultimately on 16 August 2011, Mr Andre's solicitors wrote a letter to the claimant's then solicitors Swan Turton saying the efforts to resolve the dispute had failed. The letter referred to grossly offensive messages on Twitter about Mr Andre and his team. It concluded that Mr Andre wanted no further dealings whatsoever with Mr Hendricks or the claimant.
ITV2's solicitors Quinn Emanuel were aware of that letter and it was that letter which almost certainly led to the letter the following day, 17 August 2011 from Quinn Emanuel terminating the Production Agreement with the claimant for alleged breaches of ITV's General Terms and Conditions which were said to have been incorporated into the Production Agreement. The letter accused the claimant of breaching the confidentiality provisions, undermining Peter Andre: The Next Chapter and undermining the relationship between the claimant and PJA Promotions. These were said not only to amount to Events of Default under the General Terms and Conditions entitling ITV2 to terminate the Agreement but a fundamental breach of the Agreement entitling ITV2 to terminate.
So far as Ms Katona is concerned, as I have said, after Ms Powell ceased being her manager, she was represented by Max Clifford. She had been approached by Channel 4 to take part in Celebrity Big Brother which she was anxious to do in order to make money to discharge her bankruptcy. With the assistance of Mr Clifford this was arranged. ITV2 was not keen on this proposal, contending that the claimant had undertaken that ITV2 would have the exclusive television services of Ms Katona and that the proposal would be a breach of that obligation. ITV2 was prepared, with some reluctance, to take four programmes rather than eight of Kerry Katona: The Next Chapter series 3 in the event that she appeared on Celebrity Big Brother. Mr Hendricks countered that he would agree to six. ITV2 sought to terminate the Production Agreement on 17 August 2011 also on the ground that the proposal that Ms Katona appear on Celebrity Big Brother was a fundamental breach by the claimant of its exclusivity obligation under the Production Agreement.
The proceedings
The Claim Form and Particulars of Claim were issued and served on 22 May 2012. The claimant's claim was and is that the purported termination by ITV2 by its letter...
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