The Rugby Football Union v Viagogo Ltd

JurisdictionEngland & Wales
JudgeLord Justice Longmore,Lord Justice Patten,Lady Justice Rafferty
Judgment Date20 December 2011
Neutral Citation[2011] EWCA Civ 1585
Docket NumberCase No: A2/2011/1082
CourtCourt of Appeal (Civil Division)
Date20 December 2011

[2011] EWCA Civ 1585

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE HONOURABLE MR JUSTICE TUGENDHAT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Right Honourable Lord Justice Longmore

The Right Honourable Lord Justice Patten

and

The Right Honourable Lady Justice Rafferty

Case No: A2/2011/1082

Between:
The Rugby Football Union
Respondent
and
Viagogo Limited
Appellant

Mr Martin Howe QC (instructed by Lewis Silkin LLP) for the Appellant

Mr Ian Mill QC & Mr James Segan (instructed by Max Bitel Greene LLP) for the Respondent

Hearing dates: 6 th December 2011

Lord Justice Longmore

Introduction

1

This is a case brought by the Rugby Football Union ("the RFU") in respect of tickets for the Autumn International 2010 and the Six Nations 2011 matches held at their stadium at Twickenham; it alleges that Viagogo Ltd permitted a large number of these tickets to be advertised on their website for sale at prices far above the face value of the tickets. It is said that both the sellers and the purchasers of those tickets have committed actionable wrongs against the RFU which makes great efforts to prevent the sale of such tickets at an inflated price on what they would call a "black market" and that Viagogo have become innocently involved in such wrongdoing in such a manner that the court should make a Norwich Pharmacal order (see [1974] AC 133) requiring Viagogo to identify the persons advertising and selling such tickets and identifying the tickets so sold by block, row, seat number and price.

2

The RFU is a incorporated under the Industrial and Provident Societies Act 1965. As the owner of the stadium, the RFU could, if it chose, issue tickets at prices designed to maximise profits. But it does not do this because it is also the governing body for rugby union in England and as such it considers that it has responsibilities to the sport of rugby. Its main object is not to make profits. It uses its right to issue tickets to raise the revenue it needs to operate the Stadium and to cover its expenses. But it also issues them on terms designed to promote and develop the sport. It keeps ticket prices at what it regards as an affordable level to encourage interest and involvement in the sport by a wide section of the public. When it does use tickets to raise revenue, in many instances it does so indirectly, by issuing them as part of long term arrangements. These arrangements may be with debenture holders, sponsors and suppliers, and in connection with corporate hospitality packages. So individuals may become ticket holders without having paid cash to the RFU for the ticket. Indeed for the matches in issue in this case ordinary individuals cannot as such buy tickets at all but must obtain them from the RFU's chosen outlets.

3

Individuals who obtain tickets may wish to transfer their tickets to other people for many different reasons. The RFU raises no objection to ticket holders doing this under certain limited conditions. What the RFU does object to is when ticket holders advertise tickets for sale, or when they sell, or attempt to sell, their tickets for a price in excess of the value that appears on the face of the ticket. The RFU objects to this, because it considers that that tends to defeat the purpose for which it has kept the price affordable, and for which it has itself chosen to forgo revenue which it might otherwise have received.

The judgment

4

The judge (Tugendhat J) set out the relevant passage from Lord Reid's speech in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 at page 175:-

"If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing 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."

5

The judge then identified 5 issues for decision:-

a) were arguable wrongs committed against the RFU?

b) was Viagogo mixed up in those arguable wrongs?

c) was the RFU intending to try to seek redress for those wrongs?

d) was disclosure of the information which the RFU required necessary for it to pursue that redress?

e) should the court exercise its discretion in favour of granting relief?

6

He then proceeded to decide:-

i) that it was eminently arguable that wrongs were committed against the RFU in that:-

1) individuals or others who were in a contractual relationship with the RFU were obliged not to sell tickets at more than their face value but had in fact done so;

2) anyone who sold a ticket at more than its face value was dealing with a document contrary to the way in which the RFU, as owner of that ticket, required it to be dealt with and was accordingly liable in the tort of conversion;

3) anyone who presented a ticket, for which he or she had paid more than its face value, was not entitled to enter the stadium on that basis and was accordingly a trespasser; anyone who had sold that ticket to the ultimate user intending him or her to use that ticket would be jointly liable for that trespass;

ii) (as accepted by Viagogo) that Viagogo had become mixed up or involved in that conduct;

iii) that the RFU intended to seek redress in some form from those revealed as sellers or advertisers for sale of those tickets;

iv) that it was necessary for the RFU to have disclosure of the information requested since there was no other way to get that information and, indeed, no other way to combat the black market;

v) that it was in the circumstances right to grant relief.

Submissions on Appeal

7

Viagogo challenged all the above decisions apart from (ii). But at the outset of the appeal Mr Martin Howe QC on their behalf applied to amend his notice of appeal to add a new paragraph 10 in the following terms:-

"10. The learned judge should have had regard to the fact that the order sought involved an interference with the fundamental rights of individuals under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and in the light of that fact should only have made the order if satisfied that it was both necessary and proportionate for the protection of the claimed rights of the RFU. He should have refused to make the order sought because it is neither necessary nor proportionate."

We reserved our position on the question whether Viagogo should have permission to amend their notice of appeal but permitted Mr Howe to develop the ground in argument (so that we could understand its scope) and invited Mr Ian Mill QC who appeared for the RFU to respond to such argument. Having heard the arguments on each side, we do not consider that the RFU was in any way prejudiced by having to respond to that ground and we now give permission retrospectively for the notice of appeal to be amended as asked by Viagogo.

8

The scope of the submission was that, while Article 7 of the Charter of Fundamental Rights of the European Union mirrored the entitlement of an individual to respect for his private and family life as contained in Article 8 of the European Convention on Human Rights, Article 8 of the Charter went further because it provided:-

"1. Everyone has the right to the protection of personal data concerning him or her;

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law …"

9

This Article meant, according to Mr Howe, that the court had to have regard to the Data Protection Directive of the European Parliament and of the Council of the European Union (Directive 95/46/EC) ("the Directive") and indeed to the provisions of the Data Protection Act 1998 which enacted the Directive into the law of the United Kingdom. This statute, mirroring the Directive, provides in section 35:-

" Disclosures required by law or made in connection with legal proceedings etc.

1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary –

a) For the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

b) For the purpose of obtaining legal advice,

or is otherwise necessary for the purposes of establishing, exercising or defending legal rights."

10

Mr Howe submitted that section 35 and indeed the Directive and the 1998 Act as a whole had to be read subject to jurisprudence of the European Court of Justice which laid down that any interference with or disclosure of individuals' personal data could only occur if it was both "strictly necessary" and "proportionate" to the aim sought to be achieved, see Case C-73/07 of the 16th December 2008 known as the Satakunnen case [2008] ECR 1–9831 paragraphs 52–56 and Case C-92/09 of 9th November 2010 Schecke v Land Hessen paras 72–77.

11

Mr Howe accepted that the Norwich Pharmacal jurisdiction was authorised by law and, when applied to individuals, did not fall foul of the Directive or the 1998 Act provided that the conditions of its application met the requirements of the case law of the European Court....

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