Timothy Wright (Claimant/ Respondent) v (1) Deccan Chargers Sporting Ventures Ltd (2) Deccan Chronicle Holdings Ltd (Defendants/ Appellants)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] EWHC 1307 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X05107 |
| Date | 25 May 2011 |
[2011] EWHC 1307 (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: HQ09X05107
Richard Salter QC and William Edwards (instructed by Reynolds Porter Chamberlain) for the Appellant
Victor Joffe QC and Thomas Raphael (instructed by Maitland Hudson) for the Respondent
Hearing dates: 11, 12 May 2011
On 24 and 25 May 2008 the parties entered into an agreement ("the Agreement") whereby the First Defendant ("Deccan Chargers") employed the Claimant ("Mr Wright") as Chief Executive Officer. Deccan Chargers is a subsidiary of the Second Defendant ("Deccan Chronicle"). They are both Indian companies. In April 2008 Deccan Chronicle had entered into a franchise agreement with the Board of Control of Cricket India ("BCCI") by which it acquired from the Indian Premier League ("IPL") the rights to the Hyderabad IPL franchise known as the Deccan Chargers cricket team. Deccan Chronicle transferred those rights to Deccan Chargers in August 2008. Deccan Chargers is also the name of a cricket team based in Hyderabad, India. The IPL is a domestic Indian 20/20 cricket league involving eight teams from all over India.
There very soon arose a dispute between Mr Wright and the Defendants. It is Mr Wright's case that by its conduct between 1 June 2008 and 26 January 2009 Deccan Chargers renounced the Agreement, and that by letter dated 26 January 2009 Mr Wright accepted that conduct as bringing the agreement to an end. Deccan Chronicle had signed the Agreement as guarantor of Deccan Chargers' obligation.
Master Fontaine gave permission to Mr Wright to serve the proceedings out of the jurisdiction in India. There is no dispute that CPR Practice Direction 6B paras 3.1(6)(a) and (c) gave the court the power to make such an order. The claim is in contract where the contract was made within the jurisdiction (the Agreement was made in London), and the Agreement expressly provides that it is governed by English Law.
For the purposes of this appeal the critical provision is CPR 6.37(3), which provides that in such a case:
"The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim".
The Master was satisfied that England and Wales is the proper place in which to bring the claim. She dismissed the Defendants' application that she set aside the order she had previously made by which she had given permission to serve the proceedings in India.
There had been earlier proceedings ("the first proceedings") in which Mr Wright claimed very similar relief, and which he has subsequently discontinued. The progress of the first proceedings was relevant to the application to set aside, and to this appeal, in two ways. First, the evidence adduced in the first proceedings was also relied on in these proceedings. Second, Mr Wright encountered difficulties in the first proceedings upon which he relied as showing that India was not the proper place in which to bring the claim.
There were two additional points raised before the Master in the application to set aside service, in respect of which the Defendants were successful. The first of these was that Mr Wright had advanced an alternative case that there was an express agreement made orally by Mr Iyer for the Defendants to submit to the jurisdiction of England and Wales.
The second point on which Mr Wright had been unsuccessful was that he claimed that he did not in fact need permission to serve the proceedings out of the jurisdiction. The basis for this contention was that he was entitled as of right to serve the proceedings under Council Regulation (EC) No 44/2001 ("the Judgements Regulation"). Although he lost on that point, the Judgments Regulation is relevant to a point on which he won, so it needs to be set out, so far as relevant.
The Judgments Regulation creates a special regime for jurisdiction over individual contracts of employment which is set out in Section 5, Articles 18 and 19, of that Regulation. These are, so far as material, as follows:
"18 ..
2. Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.
19. An employer domiciled in a Member State may be sued:
1. In the courts of the Member State where he is domiciled; or
2. in another Member State:
(a) In the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so,…"
THE APPEAL
This is an appeal brought by leave of a judge, in accordance with CPR 52.11. As Toulson LJ said in WPP Holdings Italy SRL v Benatti [2007] EWCA Civ 263, [2007] 1 WLR 2316 at para [45]:
"It is important to recall that this is not a rehearing but a review. The fact that permission to appeal has been given does not mean that this court should therefore carry out a fresh examination of all the evidence in order to determine whether it would independently have arrived at the same conclusion as the judge. As Rix LJ emphasised in Royal and Sun Alliance Insurance plc v MK Digital FZE (Cyprus) Limited [2006] EWCA Civ 629, [2006] 2 Lloyd's Rep 110, at para 52, the question is whether the judge erred".
The Master delivered a carefully considered and detailed judgment over twenty-six pages long. I am indebted to her for the account of the relevant facts which she gave, and from which the following summary is derived.
THE FACTS
These, the second, proceedings were commenced by a claim form issued on 19 November 2009. Permission to serve it out of the jurisdiction was granted on 24 November 2009. It is not in dispute that it was subsequently served on the Defendants on 23 June 2010 pursuant to an order for service by an alternative method which had been made on 24 May 2010.
The evidence before the court includes, for Mr Wright, the five witness statements made by his solicitor Mr Gomez, and three witness statements made by himself. For the Defendants there is a witness statement from Mr Alexander, who was the solicitor formerly instructed by the Defendants, and the witness statement of Mr P K Iyer, who signed the Agreement on behalf of the Defendants.
Mr Wright has had a successful career in the field of sports management. He has at all times resided in London. He was formerly employed, through his company TW Sports Limited, as a consultant to International Management Group ("IMG").
Deccan Chronicle is a large printing and publishing company which, among other things, publishes the Deccan Chronicle. This is the largest circulation English language newspaper in South India.
The Agreement provides as follows:
"The Company (as defined below) has described to TW [Mr Wright] its plans to create a "sports city" in Hyderabad. This may be summarised as a multi-use stadium, arena and hotel complex with state of the art facilities to showcase sports, music and other entertainment.
The Company wishes TW to help engage the services of certain sports and music industry companies and to collaborate with them in the development of a business model and a business plan that will be key documents to support an Initial Public Offering ("IPO") for the Company's stock on the London Alternative Investment Market or other investment exchanges ("listing exchange").
TW will be expected to lead an executive team he will identify and engage as well as the Company's various external agencies and other out-sourced project management, architects and constructors. TW is to play a pivotal role in the development of the sports city brand and all of the commercial and other associated opportunities.
It is understood and agreed that TW will have responsibility for the strategic management of the Hyderabad IPL franchise currently known as the Deccan Chargers. TW is to advise the Board on issues to include, but not be limited to: transfer targets, player contracts, coaching, staff acquisitions and management, marketing & media management, commercial exploitation and other brand building worldwide.
It is agreed and understood that certain of TW's fellow Directors will act as "Promoters" of the IPO and noted that they have a proven track record in this regard. It is further understood and agreed that the Company will not look to TW to take a lead role in the acquisition of a suitable property site in Hyderabad or in obtaining all necessary planning approval and other permissions.
TW agrees to cooperate and collaborate fully and closely with the Managing Director of Deccan Chronicle Holdings Ltd and with any and all other Directors of the Company from time to time.
It is agreed that, unless and until otherwise agreed in writing, this role is to be TW's exclusive executive employment activity.
Employment
Employer: Deccan Chargers Sporting Ventures Limited (or such other entity as is the owner of the Hyderabad IPL franchise (currently known as 'the Deccan Chargers')) ("the Company")
Title: Chief Executive Officer of the Company, reporting to P K Iyer.
Start date: 1 June 2008
Board A member of a board of the Company
Salary : £300,000 until such time as the Company is generating revenue, at which point rising to £500,000 per annum payable monthly in arrears
Term: Initial fixed term of three (3) years and thereafter 12 months rolling notice on either side.
Bonus Arrangements:
1. Signing-on bonus —£250,000 to be due within seven (7) days of signature of these Heads of...
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