Warren v Mendy
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE |
| Judgment Date | 14 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0214-5 |
| Docket Number | 89/0134 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 1989 |
[1989] EWCA Civ J0214-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Pill)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Nourse
and
Lord Justice Stuart-Smith
89/0134
MR. H. BURNETT, Q.C. and MR. A. DE FREITAS (instructed by Messrs Davenport Lyons) appeared on behalf of the Appellant/ Plaintiff.
MR. M. TUGENDHAT, Q.C. and MR. R. SPEARMAN (instructed by Messrs Loxleys) appeared on behalf of the Respondents/ Defendants.
It is well settled that an injunction to restrain a breach of contract for personal services ought not to be granted where its effect will be to decree performance of the contract. Speaking generally, there is no comparable objection to the grant of an injunction restraining the performance of particular services for a third party, because, by not prohibiting the performance of other services, it does not bind the servant to his contract. But a difficulty can arise, usually in the entertainment or sporting worlds, where the services are inseparable from the exercise of some special skill or talent, whose continued display is essential to the psychological and material, and sometimes to the physical, well-being of the servant. The difficulty does not reside in any beguilement of the court into looking more tenderly on such who breach their contracts, glamorous though they often are. It is that the human necessity of maintaining the skill or talent may practically bind the servant to the contract, compelling him to perform it.
The best known of the authorities on this subject are Lumley v. Wagner [1852] 1 De G.M. & G. 604 (impressario and opera singer) and Warner Brothers Pictures Inc. v. Nelson [1937] 1 K.B. 209 (film producer and actress), where injunctions were granted, and Page One Records Ltd. v. Britton [1968] 1 W.L.R. 157 (manager and pop group), where an injunction was refused. Here we have the case of manager and boxer. It is in one respect unusual, in that the manager has brought the action not against the boxer but against a third party who seeks to replace him, at all events in some respects.
The manager claims that the third party has induced a breach of his contract with the boxer. He seeks an injunction only against the third party.
The boxer, Nigel Benn, is aged 25. Having left school at the age of 16, between ages 17 and 22 he served in the Army, where he did a lot of boxing, being undefeated and winning six titles. After leaving the Army, he had five different jobs working for security companies. He also became an amateur boxer. In 1986 he won the ABA middleweight championship and turned professional. Between January 1987 and May 1988 he fought 18 professional contests, all of which he won by knockouts or technical knockouts, 15 of them in either the first or second round. In his 17th fight, on 20th April 1988, he took the vacant Commonwealth middleweight title and in his 18th, on 28th May 1988, he topped the bill at the Royal Albert Hall. Although his career was interrupted by the dispute of which we have to tell, he has now been successful in three further contests, all of them by knockouts. With such a brilliant start, it is hardly surprising that Nigel Benn is everwhere regarded as a very talented boxer with prospects of a highly remunerative career.
On 10th February 1987, shortly after his first professional contest, Nigel Benn entered into a written agreement with Mr. Burt McCarthy, whereby it was agreed that the latter should act as his manager for three years from that date. Mr. McCarthy remained his manager until after his 12th fight on 2nd December 1987. All those contests were promoted by the plaintiff, Mr. Frank Warren, who is licensed by the British Boxing board of Control ("the Board") as a boxing promoter. He is also licensed as a boxing manager, a duality of function which has assumed importance in the circumstances of the present case. In the latter capacity the plaintiff, on 27th January 1988, entered into the Board's standard form of boxer and manager agreement ("the management agreement") with Nigel Benn, who is himself licensed by the board as a boxer, whereby it was agreed that the plaintiff should act as his manager in place of Mr. McCarthy for three years from that date. In the event the plaintiff acted as Benn's manager for less than five months. During that period Benn fought six contests, all of which were promoted by the plaintiff.
It is on the rights which are asserted to have been given to him by the management agreement that the plaintiff's claim in this action is founded. By clause 2, which is headed "Obligations of Manager", the plaintiff agreed, amongst other things, to arrange and supervise a suitable training programme for Benn, to use his best endeavours to arrange for him a proper programme of boxing activities and other professional engagements and events, to arrange his professional affairs with a view to his securing due and proper profit and reward therefrom and to take reasonable steps to supervise his health and safety. By clause 4, which is headed "Obligations of Boxer":
"The Boxer agrees and undertakes:
(i) during the continuance of this Agreement to be managed and directed exclusively by the Manager and not to enter into any agreement or arrangement with any other Manager or person for any of the above—mentioned purposes without obtaining the prior written consent of the Manager…".
Nigel Benn claims that he became very disillusioned with the plaintiff's \management within a few months after the signing of the management agreement and that by about 14th June 1988 he had formed the view that there was no chance that the plaintiff and he would resolve their differences. However that may be, he accepts that he did not express his complete unhappiness until after a further fight had been arranged for him on 25th June 1988 at Luton Town Football Ground at a purse of £7,500, as he contends, or £10,000, as the plaintiff contends. (His purses for the fights on 2 0th April and 20th May had been £5,000 and £7,500 respectively and before that they had not exceeded £3,000 per fight). On 2 3rd June the plaintiff received a letter from solicitors acting for Nigel Benn, in which they stated that they had advised him that the terms of the management contract were unenforceable as an unreasonable restraint of trade and, further, that the plaintiff had committed fundamental breaches of contract and had not. fulfilled his duty of good faith. These allegations were immediately denied by solicitors acting for the plaintiff, but the upshot was that Benn's fight at Luton did not take place. On 4th July 1988 he issued a writ in the Chancery Division against the plaintiff and two of his companies, making various claims including some based on allegations of constructive trust. Nigel Benn claims that before that, we think on Sunday 26th June, he had asked the first defendant in this action, Mr. Ambrose Mendy, to whom we will refer simply as the defendant, whether he would act "as my agent to advise me on all matters concerning my career". That form of expression may be explained by the fact that the defendant is not licensed by the Board as a boxing manager. He has described himself as a trade development counsellor. Be that as it may, it appears clear that there is now some form of contractual arrangement in force between Nigel Benn and the defendant, the exact nature of which, although it remains obscure, is not material to this appeal. It is enough to say that the defendant's activities include the introduction of commercial opportunities to Benn.
This action was commenced by a writ issued in the Queen's Bench Division on 20th July 1988. On the same day the plaintiff applied ex parte to Mr. Justice Roch and obtained injunctions until trial restraining the defendant, first, from inducing a breach by Nigel Benn of the management contract; secondly, from acting as his manager or his agent in relation to any boxing activities and any other engagements ancillary to his career as a professional boxer; and, thirdly, from holding himself out as such a manager or agent. In pursuance of the liberty which was reserved to him by that order, the defendant duly applied to discharge it. That application came on for an effective hearing before Mr. Justice Pill who, on 12th September 1988, discharged the injunctions which had been granted by Mr. Justice Roch. He also, on the application of Nigel Benn, directed him to be added as a defendant to the action. The plaintiff now appeals against Mr. Justice Pill's discharge of the injunctions and seeks to have them reinstated. He also seeks leave to appeal against the addition of Nigel Benn as a defendant to the action, leave having been refused by Mr. Justice Pill.
In a careful judgment the learned judge said that, having considered the affidavits and heard the submissions of counsel, he proposed to approach the application on the basis that Nigel Benn genuinely felt unable to continue to work for the plaintiff and that he had no reason to conclude that Benn had acted capriciously or in bad faith. At the lowest from Benn' s point of view it was not obvious that all the fault was on his side. He thought it unnecessary to consider in detail either the dealings between the plaintiff and Benn or the conduct of the plaintiff and the defendant, nor to consider the reasonableness of the Board's regulations or the extent to which Benn and the defendant could collaborate without falling foul of the regulations under...
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