Rugby Football Union v Consolidated Information Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Phillips,Lord Reed,Lord Clarke,Lady Hale,Lord Kerr |
| Judgment Date | 21 November 2012 |
| Neutral Citation | [2012] UKSC 55 |
| Date | 21 November 2012 |
| Court | Supreme Court |
[2012] UKSC 55
Lord Phillips
Lady Hale
Lord Kerr
Lord Clarke
Lord Reed
Appellant
Martin Howe QC
Tom Moody-Stuart
(Instructed by Lewis Silkin LLP)
Respondent
Lord Pannick QC
James Segan
(Instructed by Kerman & Co LLP)
Heard on 14 June 2012
Lord Kerr (with whom Lord Phillips, Lady Hale, Lord Clarke and Lord Reed agree)
The Rugby Football Union (the RFU) is the governing body for rugby union in England. It owns the famous Twickenham stadium, the home ground of the England rugby football team. The RFU alone is responsible for issuing tickets for international and other rugby matches played at the stadium.
As one would expect in light of the growing popularity of rugby union football, demand for tickets for home international games at Twickenham regularly greatly outstrips the number of tickets available, notwithstanding that the stadium has a capacity of 82,000. The RFU does not allow this circumstance to inflate the cost of tickets, however. On the contrary, it is their deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets for international matches are therefore distributed by the RFU to participants in the sport, via affiliated rugby clubs, referee societies, schools and other bodies which organise rugby. The distribution of the tickets thereafter depends on the nature of the body in question. Schools, for instance, are permitted to distribute tickets to "any member of staff, pupil or genuine sponsor". Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators who then use those tickets to provide official hospitality packages. The RFU's share of the profit from this goes towards the player accident and liability insurance scheme.
The RFU's terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void, so that all rights evidenced by the ticket are extinguished. Applicants for tickets indicate agreement to these terms and conditions when submitting ticket application forms and the condition is printed on the tickets themselves. The terms on which tickets are supplied also include a condition that the ticket remains the property of the RFU at all times.
Consolidated Information Systems Limited, a firm in liquidation, was formerly known as Viagogo Limited (Viagogo). Viagogo operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of different sporting and other events at various venues. Included among these were tickets for rugby matches at Twickenham. The way in which these transactions took place was that prospective sellers of tickets could use the website to register tickets that they intended to sell and interested purchasers could then buy the tickets from those who wished to sell them. The website provided a means by which persons were able anonymously to sell event tickets at the going market price. A price based on "current market data" was suggested by Viagogo's website to potential sellers when they registered a ticket for sale. Viagogo received a percentage of the price paid for the ticket.
The website carried a privacy policy. This was accessed through a link at the bottom of the website page. It was accompanied by the words, "Use of this website constitutes acceptance of the Terms and Conditions and Privacy Policy". The privacy policy was also brought to the attention of a prospective seller when he registered on the site.
The RFU contends that arguable wrongs are involved in the advertisement and sale of tickets at above face value through the website. The sale of tickets at above face value, it is argued, impinges directly on the RFU's policy of promoting the sport of rugby by allowing tickets to be sold at affordable prices. It is no longer disputed that the sale of tickets in the manner facilitated by Viagogo's website arguably constitutes an actionable wrong.
Previously, the RFU has sought injunctions against ticket touts and unlicensed corporate hospitality providers who were selling tickets in breach of the conditions on which tickets had been supplied. It has also taken disciplinary action against clubs that had distributed tickets other than as stipulated by the conditions. In order to take these actions, of course, the RFU had to discover the identity of the individuals or clubs involved in the sale of the tickets. It engaged in a system of monitoring the websites of secondary sellers of tickets in an attempt to discover whether tickets were being sold above face value and, if so, by whom. This effort was frustrated in many instances, however, because of the anonymity offered by websites including that of Viagogo.
In the run-up to the autumn international rugby matches in 2010 and the home matches for the six-nations tournament in 2011, the RFU not only continued to monitor websites, including Viagogo's, it also conducted a series of test purchases from the Viagogo website. It discovered that Viagogo had been used to advertise thousands of tickets for the seven games that were to be played at Twickenham. Tickets with a face value of £20 to £55 were being advertised for sale at up to some £1,300. Blocks of tickets up to 24 were offered for sale.
On making these discoveries, the RFU's legal advisers wrote to Viagogo seeking information about the identity of those involved in the sale and purchase of the tickets. This was resisted. The RFU therefore issued proceedings seeking the disclosure of the information which it considered was required in order to take the action that it considered was necessary to protect its policy in relation to the sale of the tickets.
On 21 March 2011 the RFU issued proceedings seeking disclosure, under the Norwich Pharmacal principles, of the identity of those who had advertised for sale or sold tickets for the autumn international and six nations matches. Tugendhat J acceded to the application, finding that there was a good arguable case that those who had received tickets from the RFU and the subsequent sellers and buyers of the tickets had been guilty of breach of contract and/or conversion [2011] EWHC 764 (QB). He also held that those who entered the stadium by use of a ticket obtained in contravention of RFU conditions were arguably guilty of trespass. The judge found that the RFU was seeking redress for these arguable wrongs by obtaining the order that it had applied for; that the information was necessary to achieve that redress; and that it was appropriate to exercise his discretion to grant the relief sought.
Viagogo appealed the judge's order. A short time before the hearing of the appeal, it sought and was granted leave to introduce a new ground for resisting the grant of a Norwich Pharmacal order. This was to the effect that the making of such an order would constitute an unnecessary and disproportionate interference with the rights of those who, arguably, were wrongdoers. Those rights derived from article 8 of the Charter of Fundamental Rights of the European Union which guarantees the protection of personal data.
The Court of Appeal dismissed Viagogo's appeal [2011] EWCA Civ 1585. It confirmed the findings of Tugendhat J that the RFU had an arguable case on the ground of breach of contract and trespass. It decided that the RFU had no readily available alternative means of discovering who the possible wrongdoers were other than by means of a Norwich Pharmacal order. On the argument that such an order would constitute unacceptable interference with the personal data rights of those involved in the sale and purchase of the tickets, the Court of Appeal held that such interference as would be involved by the issue of the order was proportionate in light of the RFU's legitimate objective in obtaining redress for the arguable wrongs.
Before this court, the appellant's argument was effectively confined to the claim that the grant of the order would involve a breach of article 8 of the Charter.
The jurisdiction to allow a prospective claimant to obtain information in order to seek redress for an arguable wrong was recognised by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. Its scope was described by Lord Reid at p 175:
"… if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."
Later cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted: Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, para 57 per Lord Woolf CJ; Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB 717, paras 37–38 per Lord Clarke MR. It is not necessary that an applicant intends to bring legal proceedings in respect of the arguable wrong; any form of...
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