The Flying Music Company Ltd v Theater Entertainment SA and Others
| Jurisdiction | England & Wales |
| Judge | Martin Griffiths |
| Judgment Date | 08 December 2017 |
| Neutral Citation | [2017] EWHC 3192 (QB) |
| Court | Queen's Bench Division |
| Date | 08 December 2017 |
| Docket Number | Claim No HQ14X02094 |
[2017] EWHC 3192 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Griffiths QC
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Claim No HQ14X02094
Gary Hodkinson (instructed by the Claimant on a direct access basis) for the Claimant
The Second Defendant in person, and representing the First Defendant under CPR 39.6
Hearing dates: 4–6 December 2017
Martin Griffiths QC:
The Claimant, The Flying Music Company Limited ("the Company"), is a live entertainment promoter and a producer of theatrical productions. Among the Company's productions is "Thriller Live", a West End show based on the music of Michael Jackson, which has toured internationally for some years.
The First Defendant, Theater Entertainment SA ("Theater Entertainment") is a theatrical promoter based in Greece. It is no longer trading, but remains in existence as a legal entity. The Second Defendant ("Mrs Adam") is a managing director of Theater Entertainment. The Third Defendant ("Mr Adam") is her husband, and he is also a managing director of Theater Entertainment. "Badminton Theatre" was originally named as a Fourth Defendant but it is a building and not a legal entity and so I dismissed the action against the Fourth Defendant on the first day of the trial.
This case arises from a contract dated 21 May 2010 ("the Contract") by which it was agreed that Theater Entertainment would put on "Thriller Live" for a series of performances at the Concert Hall, Thessaloniki (the city also sometimes called in English Thessalonica or Salonica) between 1–6 June 2010, and at the Badminton Theater, Athens, between 9–28 June 2010. May to June 2010 was a period of civil unrest and disturbance in Greece, because of austerity measures imposed in return for support from the European Union and the International Monetary Fund.
In the event, only 3 performances took place in Thessaloniki (instead of the 8 planned) and only 16 took place in Athens (instead of the 24 planned). The Thessaloniki run was abbreviated to 4–6 June (instead of 1–6 June) and included none of the planned matinée performances. The Athens run took place in full 9–21 June (including all the matinées) but the end of the run was cancelled (23–28 June).
The case also arises from a personal guarantee signed by Mr and Mrs Adam on 18 June 2010 ("the Guarantee").
Procedural history
The Claim Form was issued on 22 May 2014. An application for summary judgment was heard and dismissed by Master McCloud in January 2016. A trial was due to take place in October 2017, but the Defendants' solicitors came off the record in August 2017 and the Defendants have had no solicitors on the record since then. The trial was adjourned for a short time to allow the Defendants to prepare. The trial took place before me on 4–6 December 2017. At the trial, Mrs Adam represented herself and also represented Theater Entertainment, pursuant to CPR 39.6. Mr Adam did not appear or give evidence, and was technically unrepresented, but the evidence and submissions put forward by Mrs Adam effectively represented his interests as well, no separate points being pleaded in relation to him on either side.
Mr Gary Hodkinson of Counsel appeared for the Company. He struck an excellent balance between representing the interests of his client and assisting the Court and the Defendants with his knowledge of the law, in circumstances where the Defendants were not legally represented. Mrs Adam, as it happens, was admitted to the Bar in the State of New York in 1991 and to practise before the Federal Bench in 1994, but she has for over 20 years made her living as a businesswoman in the entertainment industry rather than practising law, and has never been qualified in English law. She presented her case clearly and courteously and filed a 12 page skeleton argument at the outset which discussed applicable English law and authorities.
The issues
The issues for me to decide are as follows:-
(1) Issues on the Contract:-
(a) Was the Contract frustrated?
(b) If so, when?
(c) What is the effect of the frustration?
(2) Issues on the Guarantee:-
(a) Was the Guarantee supported by consideration?
(b) Was the Guarantee voidable for duress?
(3) Issue on the Counterclaim:
Should the Claimant repay €15,000 to Theater Entertainment on the basis of unjust enrichment?
(4) Quantum issues.
The evidence
At the trial, I heard evidence from four witnesses called by the Company, and from Mrs Adam on behalf of the Defendants. All these witnesses were cross examined. I was also given hearsay witness statements supported by signed and dated Statements of Truth from one witness for the Claimant, and five witnesses for the Defendant, who were overseas or otherwise in difficulty in attending as witnesses. It was accepted that, since I was not able to observe these witnesses, and there was also no opportunity to cross examine them, their evidence might carry less weight than it would if they had been called to give evidence.
I was referred to a number of documents, including contemporaneous correspondence, but there were gaps in the email disclosure from the Claimant, because of difficulties they have had with their servers in the years since the events in question. Mrs Adam also put in a number of documents and statements about the troubles in Greece in May and June 2010, including some detailed information about dates, times, and places of demonstrations, marches and rallies in Athens in May and June and the numbers attending; some press reports from the BBC and other news organisations; and a statement of the Athens road closures in May and June 2010, with a separate selection of the particular days with the largest number of demonstrators. I return to this evidence, below.
The principal witnesses giving live evidence were Paul Walden (a director of the Claimant), Ian Melding (the bookings manager of the Claimant in 2010, who had direct dealings with Mrs Adam as events unfolded) and Mrs Adam herself (who was the main contact between the Claimant and the Defendants at the material times). I have considered and evaluated, of course, all the evidence, but I will say a little about my impression of these three key witnesses before turning to a narrative of the facts.
Mr Walden seemed to have had few if any relevant direct dealings with Mrs Adam. His evidence was in many places more a speculative reconstruction than an actual recollection of material events in relation to the matters in issue. He was based in London and did not travel to Greece, and he had no personal knowledge of (and seemed to take little direct interest in) the events on the ground there. His concern was always to collect the monies due under the contract. Day to day matters were left to others, such as the Company's man on the ground in Greece, Richard Ross (who did not give evidence but from whom I had a witness statement), and Mr Melding in London. Insofar as he referred to things of which he had no direct knowledge, I did not find Mr Walden a reliable or convincing witness; partly because of his lack of direct knowledge, partly because of his general lack of interest in anything except the money side, and partly because his evidence was qualified and tentative.
Mr Melding was an important witness but his evidence was brief. His witness statement was the one prepared for the summary judgment proceedings and dated 1 June 2015, and it was also relatively brief. By the time he was cross examined, his recollection was not perfect, and the matters in question would have been less important to him than they were to Mrs Adam, so it is not surprising that he could not remember some details. He is unlikely to have remembered precise words used in oral conversations in the way that Mrs Adam might. He was a careful and honest witness, in my judgment, but his evidence could only be as reliable as his memory.
Mrs Adam was, in my judgment, a convincing witness. She was highly engaged in the events in question, and her evidence in cross examination was coherent and consistent. She made a number of admissions against her own interest, which supported my impression that she was honest. It is right to say that there were inconsistencies between her evidence and her pleadings. However, this could have been because of misunderstandings by those drafting the original and amended Defence and Counterclaim. The Statements of Truth were not signed personally by Mrs or Mr Adam. The fact that, when Mrs Adam was referred to pleadings that took points she was not taking, she did not try and adopt or revive those points, supported my general impression that she was saying exactly what she really thought and remembered when she gave evidence, and did not tailor her evidence in order to support a false case. She was a confident and spirited witness. She agreed with many of the points put to her, but not all. At some points it was put to Mrs Adam that she was lying, based on inconsistencies between her evidence and the evidence of Mr Walden and Mr Melding, or on her saying things that had not been said before. I, however, reject that accusation, as she did. The new points she made were in answer to questions, rather than being volunteered. She indicated that she had not previously thought them relevant, sometimes because she did not think they amounted to defences in law. I will consider some particular points of disagreement when dealing with the facts of the case, below but, in general terms, when there were conflicts of evidence, I preferred the evidence of Mrs Adam.
(1) Issues on the Contract: Frustration
The issues on the Contract are: whether the Contract was frustrated; if so, when,...
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