The Rugby Football Union v Viagogo Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 30 March 2011 |
| Neutral Citation | [2011] EWHC 764 (QB) |
| Docket Number | Case No: IHQ/11/0049 |
| Court | Queen's Bench Division |
| Date | 30 March 2011 |
[2011] EWHC 764 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: IHQ/11/0049
Andrew Green QC and Jamie Riley ( Instructed by Max Bitel Greene) for the Claimant
Hugh Tomlinson QC (instructed by Berwin Leighton Paisner) for the Defendant
Hearing date: 21 March 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tugendhat :
There are 82,000 seats in the Claimant's ("RFU") Stadium at Twickenham ("the Stadium"). It is the home ground for England international rugby matches, and other matches are played there. There are days when those seats are very much in demand. As the owner of the Stadium, RFU is entitled to decide who can enter it and occupy those seats. Any member of the public who enters without permission is a trespasser. That is so, whether or not they are aware that they are trespassers.
Permission to the public to enter premises is generally given by the owners of the premises in the form of a ticket (or, if entry is free, the permission may be called an invitation). Permission is called a licence by lawyers. It does not have to be in writing, but it often is. If it is in writing, then it is usually printed on a permanent medium, such as paper or card. RFU issues paper tickets with bar codes, and these are scanned at the entrances to the Stadium.
The permission and the physical medium are distinct. The permission may be revoked or expire even if the physical medium cannot be retrieved from the holder by the owner of the premises. And a person who does not hold a physical ticket may be able to prove to the owner of the premises that he has the permission to enter, even if he has lost the physical ticket, for example by credit card data.
RFU is a company incorporated under the Industrial and Provident Societies Act 1965. As the owner of the stadium, RFU could, if it chose, issue tickets at prices designed to maximise profits. But it does not do this. RFU is also the governing body for rugby union in England. As governing body for rugby union, it has responsibilities. Its main object is not to make profits. It does use 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 an affordable level to encourage interest and involvement in the sport by a wide section of the public. And 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 for the ticket.
Individuals who hold tickets may wish to transfer their tickets to other people for many different reasons. RFU raises no objection to ticket holders doing this under certain limited conditions.
What 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. RFU objects to this, because it considers that that tends to defeat the purpose for which it had kept the price affordable or low, and for which it had itself chosen to forego revenue which it might otherwise have received. I am not concerned with whether RFU are right to take this view or not. It is lawful for RFU to take this view, as is not in dispute. So whether that view is right or wise is irrelevant to these proceedings.
When tickets are in demand, there may be many people who are willing to pay more than the face value. Sometimes they are willing to pay many times the face value, especially at times like the present when the England team is doing well. To the extent that RFU has kept the price down to an affordable level, and so to forego revenue, holders will be aware that there is a difference between the face value of the ticket and the price that third parties would be willing to pay on the open market. So holders of tickets may be tempted to sell their ticket at a profit and take the benefit of it in cash, rather than in kind by attending the match.
So, RFU has taken steps to try to prevent the resale of tickets at prices above the face value of the ticket. What it has done is to have its lawyers draw up various legal documents, and to print legal wording on the tickets. The intention of this is that the permission to enter the Stadium which is represented by the paper ticket shall automatically expire, or be revoked, in the event that the paper ticket has been advertised for sale, or transferred at a price above its face value.
If these legal documents and words achieve that purpose, then any persons who hold a ticket sold at more than its face value will (whether they know it or not) be trespassers if they enter the Stadium. And, on RFU's case, there will be other wrongs committed as well. It will be necessary to consider these in more detail below.
Legal words will not work by themselves. The automatic expiry or revocation of a licence (if such there be) will not appear automatically on the paper ticket. So there has to be a system of control. If the stadium had only 82 seats, like a bus, it might be possible to have each ticket holder checked at entry, or while he or she was in the stadium. That happens on buses, in particular with concessionary tickets. A person boarding a bus may be refused entry if he presents an apparently valid concessionary ticket, but is unable to prove his entitlement to use it. For example, if the ticket is issued for unlimited travel during one day, but on terms that it is not transferable, he may be required to prove that he is the purchaser. If he does not in fact have a valid ticket, he will be a trespasser. This will be so even if he has deceived the driver into believing that he is the purchaser he falsely claims to be. Even if he persuades the bus driver of his entitlement, he may still fail to persuade an inspector. The bus may be kept at a standstill while the trespassing passenger is checked and required to leave the bus.
Obviously no such methods of control would be practical at Twickenham. Even if it were possible to have inspectors check the right of holders to enter the Stadium, verifying that the holder had not paid more than the face value would be more complicated than verifying that he is the original recipient. In practice what can be verified by the scanners are simple matters, such as that the paper is not a forgery, or that it is not a ticket valid only in respect of a different date.
The Form of the Order
The information sought as set out in the draft order is as follows:
"a) the names and addresses of the people who have advertised for sale and/or sold RFU tickets ("the tickets") via www.viagogo.co.uk and www.viagogo. com ("the websites") and/or via the respondent directly, to the autumn international 2010 matches held at Twickenham Stadium;
b) the names and addresses of the people who have advertised and/or sold tickets via the website and/or via the respondent directly to the Six Nations 2011 matches to be held at Twickenham Stadium;
c) the full details of all the tickets advertised for sale on the Websites and/or otherwise via the Respondent for the Autumn International 2010 and Six Nations 2011 matches including but not limited to in the case of each Ticket the gate, block, row and seat number and the price at which the Ticket was advertised for sale;
d) [similar detail as to the price at which the Ticket was sold].
Viagogo's business
Viagogo operates a successful online business. It carries on business for profit, and has no other responsibilities. I accept that businesses conducted solely for profit may provide great benefits to the public. But our civic and public life would be much diminished if all businesses were conducted solely for maximising profit. I mention this because the evidence on each side contains passages that are directed to demonstrating that the party concerned is providing a public benefit, and the business, or stance, of the other is to be disapproved in various ways. Since the business models of both parties are in principle lawful, the court is simply not concerned with this debate.
Viagogo provides a secondary market for tickets for many different venues and events. Its main business does not involve itself buying and selling tickets. For the most part it offers a place where prospective sellers may record details of tickets they are offering for sale, and prospective buyers may find the tickets they want and buy them directly from the seller. There are many other companies that do business on this model, including eBay, and a number of them are competitors of Viagogo, both generally, and in respect of tickets issued by RFU.
Viagogo naturally charge for this service. It may well be that, on occasions when the match is not so popular, tickets are sold and bought for less than their face value. But RFU still object to their tickets being advertised for sale. RFU also objects to sellers and buyers agreeing prices through the Viagogo website which are higher than the face value of the ticket.
When sellers advertise RFU tickets for sale, and when buyers do agree to the transfer of RFU's tickets for a price higher than the face value, it is RFU's case that various wrongs are committed (that is wrongs under...
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