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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Joseph & Ors v Spiller & Anor [2009] EWHC 1152 (QB) (22 May 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/1152.html Cite as: [2009] EWHC 1152 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) CRAIG JOSEPH (2) JASON JOSEPH (3) ANTHONY RAYMOND |
Claimants |
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- and - |
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(1) JASON SPILLER (2) 1311 EVENTS LIMITED |
Defendants |
____________________
David Price (Solicitor-Advocate of David Price Solicitors & Advocates) for the Defendants
Hearing date: 12 May 2009
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Crown Copyright ©
Mr Justice Eady :
"1311 Events is no longer able to accept bookings for this artist as The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract.
…
What we say:
The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night At The Movies has advised 1311 Events that the terms and conditions of '… contracts hold no water in legal terms' (27.03.07). For this reason, it may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for The Gillettes and Saturday Night At The Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.
Instead, we recommend any of the following professional bands and artists … "
"… the Claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies."
There is a claim for general damages and also for special damages in respect of two engagements said to have been cancelled by hirers of their services who had read the words complained of.
"The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events."
He added that the Defendants would not be representing the Claimants any longer, "as we can only work with professional artists who can accept our terms and conditions".
"Hi Jason
It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artitses [sic] alike with work, one does not work without the other.
You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms. You should consider looking after your clients/ venueus [sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more. You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary.
I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms or conditions.
Thers [sic] is one outstanding show with you guys Aug 4th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee £900.00 + vat. TOTAL = £1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancelation [sic] of the show. Please confirm this can be organized within 7 days or I will cancel the date.
I look forward to any legal trysts.
Kind regards
Craig (On behalf of The Gillettes)."
"9. Further or alternatively, the words complained of are true or substantially true.
Meanings that the Defendant alleges to be true
9.1. The First Claimant on behalf of the Claimants has:-
9.1.1. Conducted himself in such a manner as to entitle the Defendants to conclude that the Gillettes were not sufficiently professional to feature in the Second Defendant's portfolio.
9.1.2. Breached the terms of agreements with the Second Defendant.
9.1.3. Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007.
9.2. In the circumstances, the Claimants may not necessarily adhere to the terms of booking agreements signed by the First Claimant.
The facts on which the Defendant relies
9.3. Paragraphs 4 & 5 above are repeated. The Second Defendant's terms and conditions are clearly set out. They are standard. At no point prior to 27 March 2007 did the First Claimant question or take issue with them.
9.4. In April 2006 the Second Defendant secured a booking for the Gillettes at Bibis restaurant in Leeds on 31 December 2006 for £2,937.50. The Second Defendant had previously secured bookings for bands at Bibis.
9.5. On 19 April 2006 the First Claimant signed the Second Defendant's booking form on behalf of the Claimants for the performance. The booking form identified the artist as the Gillettes and the client as Bibis Restaurant. Immediately above the First Claimant's signature appeared the words "I/We agree to the 1311 Events Ltd Terms & Conditions" which were clearly printed on the reverse and must have been seen by the First Claimant. The First Claimant posted the signed booking form to the Defendants.
9.6. The terms and conditions commence with the words: "Your booking with 1311 Events is conditional on you accepting our terms. If you do not agree with any part of them you must not proceed with your booking. If there is any part that you do not fully understand or if you have a query about your booking, please contact us on 0845 075 1311".
9.7. One of the terms and conditions was headed "Re-engagement" and stated: "The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events".
9.8. In or about March 2007 the Second Defendant discovered that the Gillettes were booked to perform at Bibis restaurant on 9 May 2007. The booking was not made with the Second Defendant.
9.9. This was a clear breach of the re-engagement term.
9.10. Further, it is to be inferred that the breach was deliberate.
9.10.1. The First Claimant failed to disclose the booking to the Defendants.
9.10.2. The First Claimant must have been aware of the re-engagement term and/or known that such terms were standard.
9.10.3. The content of the First Claimant's email of 27 March and the matters set out in paragraphs 9.12.3 to 9.12.5 suggest that he simply chose to disregard or find a way round the term, once it became apparent that the First Defendant had discovered the booking.
9.11. On 27 March 2007 the Second Defendant sent an email to the First Claimant informing him of the breach and that the Defendants would no longer be representing the Gillettes.
9.12. The First Claimant responded by email on the same day. The Defendants will rely on the whole of the email. In summary, it demonstrated a contemptuous, cavalier and unprofessional attitude to contractual obligations voluntarily assumed by the First Claimant on behalf of the Claimants.
9.12.1. The First Claimant asserted that the contract with the Second Defendant was "a formality and holds no water in legal terms". This suggested that the First Claimant's signature to the agreement and apparent acceptance of its terms was meaningless to him.
9.12.2. The apparent justification for this assertion was that the First Defendant came to him after viewing the Gillettes' show. However, this was obviously irrelevant to the binding nature of the subsequent contract between the parties.
9.12.3. Further, the First Claimant asserted that he would not be playing in the show and that since "your agreement was with me there are no grounds for your terms and conditions". This was a dishonest and brazenly cynical attempt on the part of the First Claimant to wriggle out of the Claimants' responsibilities under the agreement. As the First Claimant was well aware, he contracted with the Second Defendant on behalf of himself and the Second and Third Claimants. Indeed, the Claimants' case in these proceedings is that the First Claimant is the manager and representative of the band, that the Claimants are all equal partners and the First Claimant contracted on behalf of all the Claimants.
9.12.4. The very fact that the First Claimant had felt the need to come up with a spurious way of trying to get round the re-engagement term suggests that he was well aware that it was binding.
9.12.5. In a further misguided attempt to get round the re-engagement term the Claimants have asserted that the First Claimant did not even arrange the booking for the performance of 9 May 2007 and that "the band as individuals had no agreement of any kind with [you] before they arranged this gig directly and on their own behalf and were thus not in breach of anything either". The Defendants will rely on the email of 31 May 2007 from John Ainslie, Regional Organiser of Equity on behalf of the Claimants to the Defendant, which it is to be inferred was based on information provided by the Claimants. It is to be inferred that the Claimants were dishonestly seeking to distance the First Claimant from the booking and get round the fact that the First Claimant at all times acted on behalf of the Second and Third Claimants, in a misguided attempt to bolster the strength of their defamation claim and obtain funding from Equity in order to be able to pursue it.
9.12.6. The First Claimant's parting words – "I look forward to any legal trysts" – demonstrated further contempt for the contractual obligations to which he had voluntarily agreed.
9.13. In December 2005 the First Defendant contacted the First Claimant to inform him of a potential booking at the Landmarc in Bournemouth on 4 March 2006. The First Claimant informed the First Defendant that the band was available that night. The First Defendant informed the Landmarc of this who confirmed that they wanted to book the band. The First Defendant informed the First Claimant that the Landmarc definitely wanted to go ahead and repeated the date. The First Claimant confirmed that the date was acceptable to the Claimants. Following the conversation the First Defendant sent out a completed booking form for signature by the First Claimant. On 17 December the First Claimant signed and returned the booking form.
9.14. On or about a week later the First Claimant informed the First Defendant that the Claimant would not be able to honour the agreement to play as they had made a mistake and the band had a previously confirmed booking on the same night. This was a clear breach of the booking agreement and was highly unprofessional. The First Claimant's conduct was also capable of damaging the Defendants' relationship with the venue.
9.15. Further, it is to be inferred that the Claimants did not have a pre-existing booking, but that something better came up."
"RE-ENGAGEMENT
The client and artist agree that subsequent bookings within a 12 month period from any artist provided by 1311 Events will be booked directly with 1311 Events and not with the artist directly."
"All artists must notify 1311 Events immediately where a performance cannot be fulfilled as indicated in their contract."
Mr Bennett suggests that the words "in their contract" plainly suggest that the artist's contractual obligations are to be found elsewhere (i.e. in a document different from that containing the terms governing the hirer's rights and obligations). In so far as these terms and conditions refer to obligations on the part of the artist, it is said that they are merely informing the hirer as to where the division of responsibility lies as between the hirer and the artist. There is a section headed "ARTISTS ARE RESPONSIBLE FOR" and, underneath it, a section headed "CLIENTS ARE RESPONSIBLE FOR". In other words, argues Mr Bennett, this is for the information of the hirer rather than creating obligations on the part of the artist directly. He suggests that any obligations imposed on the artist are created and recorded in a separate document.
"The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events."
The important distinction for Mr Bennett, on the other hand, is that in the written version of the contract signed by the First Claimant on 19 April the word "overleaf" is not to be found. In fact the terms and conditions were to be found overleaf and, in any event, the First Claimant had had them available for inspection via the hyperlink when he originally contracted online in October 2004. At that time the wording of the re-engagement term was superficially different, but this was not material. The First Claimant had already agreed to those terms, including the re-engagement term, in October 2004 and there was no question of a variation being imposed upon him, unwittingly, when he signed up for Bibis on 19 April 2006.
"For the purposes of this Act 'employment agency' means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding [persons] employment with employers or of supplying employers with [persons] for employment by them."
It would not appear to be of any great significance, but the word "persons" was substituted by the Employment Relations Act 1999, s.31, Sch 7, paras 1 and 7. The original word was "worker(s)".
"regulating the way in which and the terms on which services may be provided by persons carrying on such agencies and businesses".
"Subject to paragraph (7), before first providing any work-finding services to a work-seeker, an agency or employment business shall obtain the agreement of the work-seeker to the terms which apply or will apply as between the agency or employment business and the work-seeker …."
"Subject to paragraph (3), an agency or employment business shall ensure that –
(a) all terms in respect of which the agency or employment business has obtained a work-seeker's agreement are recorded in a single document, or where this is not possible, in more than one document; and
(b) copies of all such documents are given at the same time as each other by the agency or employment business to the work-seeker with whom they are agreed before the agency or employment business provides any services to the work-seeker to which the terms contained in such documents relate."
"(e) A statement as to whether the work-seeker is required to give notice to terminate the contract between the work-seeker and the agency and, if so, a statement as to the length of the notice required; and
(f) A statement as to whether the work-seeker is entitled to receive notice of termination of the contract between the work-seeker and the agency and, if so, a statement of the length of the notice."
"Neither an agency nor an employment business may (whether by the inclusion of a term in a contract with a relevant work-seeker or otherwise) –
(a) subject or threaten to subject a relevant work-seeker to any detriment on the ground that –
(i) the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business, or
(ii) in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or
(b) require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker."
"There have been a large number of cases decided on various statutes dealing with the circumstances in which a breach of a statutory provision renders illegal, or incapable of suit, a contract which it applies; but the general result of them is, I think, fairly clear. When the policy of the Act in question is to protect the general public or a class of persons by requiring that a contract shall be accompanied by certain formalities or conditions, and a penalty is imposed on the person omitting those formalities or conditions, the contract and its performance without those formalities or conditions is illegal, and cannot be sued upon by the person liable to the penalties. A case which affords a forcible illustration of that principle is Little v Poole 9 B & C 192, 201, where a statute provided that a vendor of coal should at the time of the delivery of it deliver also a signed certificate as to the quality of the coal, and the vendor, who had neglected to deliver the certificate, was held disentitled to recover the price."
It would thus appear to follow that, as between the Claimants and the Second Defendant, the re-engagement term would be unenforceable and, accordingly, the conduct of the Claimants in contracting with Ms Dawes directly would not represent an actionable breach.
"In his email of 27 March 2007 the First Claimant referred to one 'outstanding show' on 4 August 2007 which he said that he would 'honour'. This was the wedding of Michael Coombes which had been arranged by the Defendants. By email of 16 April 2007 to Mr Coombes the First Claimant agreed to play an additional 30 minute set provided that he was paid £275 in cash. The First Claimant stated: 'We can play an additional 30 min set but we would have to charge an additional £275 (cash) for that pro rata to the fee we would not charge the vat on that fee though and that would be direct to us guys and nothing to do with 13-11 Events!' The First Claimant was thereby seeking to evade paying the First Defendant's commission on the additional sum as well as VAT and (it is to be inferred) income tax. In the First Claimant's booking form signed by him on 25 April 2007 he requested that 'cash be paid on the night to avoid confusion with my paperwork and vat'. It is to be inferred from the manner in which the First Claimant conducted himself in relation to this booking, that he was generally amenable to seeking and accepting cash payments in order to evade the payment of tax."