Mr Luke McKay v The All England Lawn Tennis Club (Championships) Ltd

Hearing date: 23 April 2020

Approved Judgment

Introduction

The appellant, Mr Luke McKay, deals in tickets for sporting events on the unofficial and unregulated secondary market. In colloquial terms, he is a ticket tout. The tickets in question are usually subject to strict conditions which prohibit or restrict their transfer or onward sale, and typically provide that they will at all times remain the property of the issuing body. If such a ticket is sold on the black market in breach of the conditions, usually for a sum greatly in excess of its face value, the vendor is likely to incur various forms of civil liability in tort and/or contract. He may also expose himself to the risk of criminal proceedings, particularly if he has acted in concert with others. The purchaser of the ticket, meanwhile, has no valid right of entry to the event, his ticket is void and worthless in his hands, and he is at risk of being refused admission, or required to leave the premises, once the infringement has been detected.

In very general terms, that is the background to the present case, which comes before us on appeals by Mr McKay from two orders of the High Court in proceedings for civil contempt of court brought against him for his alleged refusal to comply with an order for the disclosure of information first made against him by Nicklin J on 9 July 2019, during the 2019 Wimbledon lawn tennis championships. The claimants, and respondents to the appeal, are The All England Lawn Tennis Club (Championships) Limited (“AELTC”), which conducts the annual lawn tennis championships (“the Championships”) in the grounds at Church Road, Wimbledon, and The All England Lawn Tennis Ground PLC, which owns the grounds. I will refer to the respondents together as “Wimbledon”.

The first order under appeal was made by His Honour Judge Freedman, sitting as a High Court judge in the Queen's Bench Division, on 29 November 2019 (“the Committal Order”). Mr McKay appeared in person on that occasion, although (as I shall relate) there had been earlier hearings of the committal proceedings at which he had been given every opportunity to obtain legal representation, and he had indeed instructed a firm of solicitors which initially acted for him, but shortly before the hearing found itself unable to continue doing so. The Committal Order recited that the judge was satisfied that Mr McKay was guilty of contempt of court in failing to comply with sub-paragraphs 3(c)(i), (ii) and (iii) of Nicklin J's order of 9 July 2019, and ordered him to be imprisoned for a term of 26 weeks. This sentence was, however, suspended until a further return date on 13 December 2019, in order to give Mr McKay a final opportunity to purge his contempt. The order expressly stated that, if he failed to purge his contempt, the suspension would be lifted on the return date.

At the subsequent hearing on 13 December 2019, which took place before Nicol J, Mr McKay had the benefit of representation on a pro bono basis by Mr Anton van Dellen and Mr Harry O'Sullivan of counsel. After hearing submissions, the judge was satisfied that Mr McKay had failed to purge his contempt and that the conditions for suspension of the Committal Order had not been observed. Nicol J therefore ordered that the suspension of the prison sentence should be lifted, but he also stayed the lifting of the suspension until 20 December 2019 when Mr McKay's time for filing a notice of appeal against the Committal Order would expire. The order went on to provide that if a notice of appeal was filed before that deadline, together with a request that this court should deal with the appeal on an expedited basis, there should then be a further stay of the lifting of the suspension until the determination of the appeal, subject to any further order which this court might make.

That order, which I will call “the December Order”, is the second order under appeal. Mr McKay duly filed his notice of appeal against the Committal Order on 13 December 2019, and by a second notice of appeal, filed on 31 December 2019, he also challenged the decision of Nicol J in the December Order to lift the suspension of the original sentence.

By virtue of CPR rule 52.3(1)(a)(i), no permission to appeal is required “where the appeal is against…a committal order”. No doubt because the combined effect of both orders was to commit Mr McKay to prison for an immediate term of six months, subject only to the stay imposed by Nicol J pending the outcome of this appeal, no point has been taken that Mr McKay might arguably have required permission to appeal against either order viewed in isolation.

Mr McKay has the benefit of legal aid for the appeal, and Mr van Dellen now appears for him instructed by OWN Solicitors. Wimbledon appear, as they did below, by Mr Edward Rowntree and Mr Charles Raffin of counsel, instructed by Kerman & Co. In addition, the Secretary of State for Justice has been joined to the appeal, at a very late stage, as an interested party, in order to assist the court in relation to an application for a declaration of incompatibility under section 4 of the Human Rights Act 1998 raised for the first time on Mr McKay's behalf by an application notice dated 26 February 2020 but not sealed until 19 March 2020. As I shall explain, the declaration sought was that section 13 of the Fraud Act 2006 is inconsistent with Article 6 of the European Convention on Human Rights (“the ECHR”). The application was made at such a late stage, and with so little in the way of supporting argument, that the only realistic course, particularly in view of the grave difficulties occasioned by the Covid-19 pandemic, was to adjourn it to be heard together with the appeal, so that the Secretary of State for Justice would have sufficient time to consider and respond to it. In the event, Ms Sasha Blackmore of counsel was instructed by the Government Legal Department, and under considerable time pressure she was able to produce detailed written submissions in advance of the hearing. We are very grateful for her written and oral submissions, which made it abundantly clear that the application is wholly misconceived.

Background

The relevant background is set out in a witness statement of Lewis David Glasson, an associate solicitor at Kerman & Co, which he made on 8 July 2019 in support of Wimbledon's initial application to Nicklin J. This witness statement was later exhibited to the first affidavit in support of the committal application sworn on 5 September 2019 by Emma Elizabeth Shaw, who is also an associate solicitor at Kerman & Co. There is a helpful summary of the background in the skeleton argument of counsel for Wimbledon, upon which the following account draws.

The Championships are controlled, managed and promoted by AELTC. They are traditionally held over a period of two weeks in late June or early July. In 2019 the Championships ran from 1 to 14 July.

The Championships have never been run as a purely commercial venture with profit as the foremost motive. After the expenses of maintaining the premises have been defrayed, the financial surplus is used for the general benefit of British tennis. Tickets available to the general public have always been priced at a reasonable level, and distributed through a carefully controlled ballot which is designed to offer equality of opportunity to purchase them. Other tickets are distributed to members, officials and various affiliated organisations, both at home and abroad.

Each year two types of tickets for the Championships are issued by AELTC. Debenture tickets do not show a price, and they are fully transferable without restriction. These tickets are issued to debenture holders of AELTC. All other tickets have since 1991 been issued at a face value shown on the ticket, and are subject to conditions of the general nature I have already indicated: they may not be purchased or obtained from or through any person other than AELTC or its authorised agents; they are strictly non-transferable; they remain the property of AELTC at all times; and any ticket obtained in violation of the restrictions is to be treated as void. These tickets are referred to in the evidence as Non-Transferable Wimbledon Tickets, or “NTWTs”.

Despite these conditions, and despite the sustained efforts of AELTC to enforce them, every year there are individuals and organisations which acquire a number of NTWTs (either legitimately or from third parties) and seek to sell them on, usually at grossly inflated prices, either outside or near the grounds, or increasingly over the internet. Part of the work carried out by AELTC includes monitoring the internet for tickets to the Championships which are advertised for purchase or sale, and carrying out...