Mr Keith Mason v Huddersfield Giants Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Saffman |
| Judgment Date | 15 July 2013 |
| Neutral Citation | [2013] EWHC 2869 (QB) |
| Docket Number | Case No: 2LS90339 |
| Court | Queen's Bench Division |
| Date | 15 July 2013 |
[2013] EWHC 2869 (QB)
HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MERCANTILE LIST
LEEDS DISTRICT REGISTRY
Leeds District Registry
1 Oxford Row
Leeds
LS1 3BG
His Honour Judge Saffman
SITTING AS A JUDGE OF THE HIGH COURT
Case No: 2LS90339
Mr M Budworth for the claimant
Mr Wilson for the defendant
Introduction
The Claimant Keith Mason is a professional and accomplished prop-forward who from 5 th May 2006 until his summary dismissal on 4 th October 2012 played for the Defendants Huddersfield Giants who are a successful rugby league club playing in the Super League.
On 20 th August 2010 the Claimant and the Defendant had entered into a contract of employment to cover the period 1 st December 2011 to 30 th November 2015, namely four seasons by which time the Claimant, who is currently 31, would be 33. It provided for the Claimant to be paid £95,000 a year for the 2012 – 2013 seasons rising to £97,500 a year for the following two seasons if the Defendant's salary cap which is the maximum they can expend on players wages in any one season increased to above £1.65 million.
The contract also provided for the Claimant to be entitled to various bonuses on the happening of certain events but none of those, I think, are relevant for the purpose of this claim. By clause 21.1 of the contract (to be found at page 268 of the bundle) the club became entitled to summarily dismiss the Claimant for gross misconduct.
Clause 21.1 reads as follows:
"Notwithstanding any other provisions of this agreement the club may terminate this agreement summarily by serving the player with written notice to that effect. In such event the player shall not be entitled to any further payment from the club whether by way of compensation, damages or otherwise in respect of or in lieu of any notice period or unexpired term of this agreement. This clause shall apply if the player is guilty of any acts of gross misconduct which shall include, but is not limited to, the following circumstances in which a player:
(a) commits any serious breach of this agreement, which for the avoidance of doubt, without limitation, shall included serious or persistent breaches of clauses 5 or 12 above; or
(b) are guilty of any serious or persistent misconduct or any wilful neglect in the discharge of his duties including, but not limited to, any offence of gross misconduct as defined in the procedures annexed to this agreement from time to time as amended."
I have not been referred to the procedures annexed to the agreement but it will be noted that the definition of gross misconduct includes, but is not limited to, persistent breaches of clauses 5 and 12 of the agreement as well as serious or persistent misconduct or any wilful neglect in the discharge by the Claimant of his duties.
Clause 12 is not relevant to this claim but clause 5 is. That is to be found at page 265. The relevant sub clause is 5e which states that:
"You agree with the club that…
… (e) You acknowledge and agree that to preserve the good name and reputation of the club and the league that your conduct both on and off the field must be of the highest standard and that you must conduct yourself at all times both on and off the field in a manner which will uphold the good reputation of the club and the league and not bring the club or league into disrepute. And that if you breach this clause the club may take action against you independent of any action that the league may take against you under the regulations. If your conduct is such that, in the reasonable opinion of the club, the reputation of either the club or the league is or is likely to be harmed this could amount to gross misconduct which may lead to summary termination."
The Defendants summarily terminated the Claimant's contract on 4 th October 2012 on the basis of gross misconduct and that his dismissal was justified on that basis.
The Claimant does not accept that. He contends that his dismissal was wrongful and in breach of contract and he brings his claim on that basis.
The Claimant is represented by Mr Budworth of counsel and the Defendant by Mr Wilson of counsel.
I had hoped at the outset of this case that perhaps quantum of this claim could have been agreed subject to the issue of liability. That however, has not proved possible and so I propose initially to deal with the question of liability and thereafter quantum if it remains relevant.
The misconduct alleged
What was the alleged conduct which the Defendant says justifies their decision to summarily dismiss the Claimant? On Sunday 16 th September last year the Defendant's playing season ended for the first team with their defeat by Hull KR in the Super League playoffs. A practice appears to have grown up amongst Super League clubs that, at the end of their season, the first team players take part in what has become known as 'Mad Monday'. This can only be described as a sort of communal bender where all the first team members embark upon an extended drinking session. This Mad Monday, so far as the Huddersfield first team were concerned, started on the Sunday evening after their game at Hull and it did not draw to a conclusion until the following Tuesday, 19 th September, with no real let up in the drinking during that period.
It seems that at some stage during Mad Monday Scott Moore, a team mate of the Claimant, used the Claimant's phone when the Claimant was absent at the toilet to take a picture of his own anus. The picture is to be found at page 300 of the bundle. It is not now suggested that the Claimant was present when, or indeed even aware of, this picture being taken, however, the Claimant acknowledges that he became aware of the photo not long thereafter when he was given the tip off by one of his team mates.
On Tuesday 18 th September when the Claimant got home from this extended drinking session, by which time, as one may probably expect having been drinking ceaselessly since the previous Sunday night, he was considerably the worse for wear and very tired. He decided to have a bath. While he was in the bath his girlfriend, Lauren Harwood, looked at photos on his phone and came across this photograph of Scott Moore's anatomy and she asked the Claimant what it was. He told her and (and this is accepted by the Defendants) unbeknown to him and without his encouragement Miss Harwood tweeted the picture from the Claimant's phone with the message,
"What the hell is this?"
The picture was tweeted to alleycat21 which is Scott Moore's tweet address. The effect of that, and I understand this to be common ground between the parties, is that it would have been seen by all the Claimant's twitter followers of which there are about 4,200 provided that they cared to access it.
The actual tweet sent by Lauren Harwood is at page 301 and the Defendant's evidence is that it was sent at 12:39 on that Tuesday but the Claimant actually contends that it was not sent that early but was in fact sent sometime in the middle of the afternoon or early evening.
Whatever time it was sent it was seen by a Mr Gavin Wilson very shortly thereafter who had the good sense to send a tweet saying "Lads, really not cool". That was sent to the Claimant at his tweet address, maso106 and it was also sent to Scott Moore.
In his witness statement and indeed in his oral evidence the Claimant denies that he was aware of the offending tweet until the following day at the earliest, however, he does not deny that he responded to Mr Wilson's tweet within a matter of minutes with a tweet of his own saying "defo not me". That tweet is at page 301 of the bundle. It is not the full extent of the tweet. The full extent of the tweet includes Mr Wilson's earlier tweet, so the tweet reads "lads really not cool" "It's defo not me".
There is obviously an inconsistency in the Claimant's two positions namely that he had no idea that the offending tweet had initially been sent and the fact that he admits sending out a response minutes after it was sent which effectively refers to it.
They are reconciled as far as possible by the Claimant on the basis that at this time he was still inevitably very drunk and he had not really got his head around the offending tweet until he sobered up and recovered from the very serious hangover from which he was suffering for the whole of the following Wednesday.
It is right to say that the fact that the Claimant was still drunk on 18 th September when he got home from Mad Monday did not preclude him from continuing to tweet. The fact that he did so is evidenced by extracts of further tweets, to which I have been referred and which are in the court bundle, not only on the Tuesday but also on the Wednesday.
The Defendants contend that these are an indication that the Claimant was compos mentis well before Thursday which is the date when he says that he really came round from the effects of Mad Monday.
Twitter offers the facility to delete tweets that have already been sent. The offending tweet was deleted on Thursday 20 th September 2012. The Claimant says that he did it on Thursday morning when, having sobered up and recovered from his hangover, he realised the enormity of the photo and deleted it of his own accord without prompting from anybody else.
The Defendant's position is that it was not deleted until later that day and only then after the Claimant had been contacted by his agent, Martin Shuttleworth and told to remove it. By that time Mr Richard Thewlis the clubs chief executive had been made aware of the tweet because he was telephoned on the Tuesday evening by a friend of his, Gary...
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