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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacDonald v Federation International De Football Association & Ors [1998] ScotCS 85 (2 December 1998)
URL: http://www.bailii.org/scot/cases/ScotCS/1998/85.html
Cite as: 1999 SCLR 59, [1998] ScotCS 85, 1999 GWD 1-48, 1999 SLT 1129

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OPINION OF R. G. McEWAN

(Sitting as Temporary Judge)

in the cause

JOHN MACDONALD

Pursuer;

against

FEDERATION INTERNATIONAL DE FOOTBALL ASSOCIATION AND OTHERS

Defender:

________________

2 December 1998

On 9 October 1996 an international football match was arranged between Scotland and Estonia. It was a qualifying match for the 1998 Word Cup. The kick off had been re-timed for 3.00pm at the Kadriog Stadium in Tallinn. The Scottish team took the field. The Estonian team failed to appear. The referee started the match with only one team and abandoned it after a few seconds. The Scottish team expected under the relevant rules that they would be awarded the game by a score of 3 goals to nil. In the event the Estonian team lodged a successful appeal and the match had to be replayed some four months later in Monaco.

This case has arisen out of these events. Not only the pursuer is involved. The action is also brought by him as assignee of two other named individuals. All three are football fans, supporters of Scotland and went to Tallinn for the game. It is not expressly averred by the pursuer that he or the others had a ticket (which is issued by the Estonian F.A.) or indeed entered the Kadriog Stadium to see the match. For present purposes I have assumed that they did.

In the present action the pursuer sues firstly the Federation International de Football Association (referred to hereafter as F.I.F.A.). F.I.F.A. is an association whose members are the football associations of the many countries where football is played. They are domiciled in Switzerland with an address in Zurich; are the governing body for world football and in particular organise and run the World Cup football competition. The second defenders are the Scottish Football Association who are domiciled in Scotland with an address in Glasgow (referred to hereafter as the S.F.A.). He alleges that these defenders are jointly and severally liable to him and the others for certain travelling and living expenses in going to Estonia to watch the game. There is also an element in the claim for disappointed expectations.

It is helpful now to examine more closely the factual basis of the claim. Few of these facts seem to be in dispute. Some time before October the Estonian F.A. and the S.F.A. agreed the date and venue for the match as 9 October in Tallinn. The match was to be played under floodlights in the early evening. It is averred that F.I.F.A's Organising Committee approved of this arrangement. The pursuer then avers that temporary floodlighting was erected in the afternoon of 8 October. It was tested before representatives of both defenders. The S.F.A. represented that it was unsuitable and F.I.F.A. agreed. The F.I.F.A. representative changed the kick off time to 3.00pm on the 9th. Both teams were told of this, the Estonian team then being some 70 kilometres from the ground. It is alleged, without much specification, that transportation services are poor in Estonia. The pursuer goes on to aver that the Estonians did not try to reach the ground in time for the match having decided that they were not going to turn up.

What duties of care then are averred to be owed by each of the defenders? They are to be found, mixed in with factual averments, between Articles 4 to 9. I deal firstly with F.I.F.A.

It is said (Cond. IV) that they had a duty to ensure the adequacy of the venue including floodlights but as it were only at second hand after the second defenders performed the same duty. In Cond. V it is said that the F.I.F.A. representative found the floodlighting to be unsuitable and changed the kick off time. It is also said, by inference, that transport services in this former part of the Soviet Union are poor. No duty positive or negative is spelled out of this information but it does appear in Cond. VIII. It is there said that they had a duty to see that the ground was suitable, the floodlighting adequate and not to alter the kick off time so close to the game that the Estonian team did not turn up. It is not said how these defenders would have foreseen that the home team would not turn up.

As far as the S.F.A. are concerned it is averred that they had a responsibility to ensure the adequacy of the venue including the floodlights. That general duty is made more particular in Article 9, when it is said that when they agreed the date, venue and time, they had a duty to take reasonable care to ensure that the match could be played at that time. It is not entirely clear how the S.F.A. were to ensure the adequacy of the floodlights. They were, after all only put up the day before the game. It is not said that they should have inspected the ground or how long before the game. It has to be borne in mind that the World Cup is open to all nations associated to F.I.F.A. Not all will have the same facilities and richer countries are more likely to have more sophisticated grounds and floodlights. Nowhere is it said how the S.F.A. could have foreseen that the home team would not appear.

The pursuer founds on the World Cup rules (Cond IV). These were produced at the hearing before me and referred to without objection. It helps to examine some of the rules, as there seems to be a marked distinction between the Preliminary Competition and the Final Competition.

Scotland and Estonia are two of the National Associations affiliated to F.I.F.A. (Article 2). They were entitled to, and did, participate in the preliminary competition which is governed by Article 4. Article 4.7 gives the power to the National Associations concerned (here Scotland and Estonia) to fix the date and venue of a preliminary match. Nothing is said about kick off time. F.I.F.A's Organising Committee has to approve the date and venue. It is clear from Article 33 that the financial benefit of a preliminary game goes to the host nation, as do the Media rights (Article 31).

F.I.F.A's Organising Committee finds its definition in Article 8 where various powers are given over the Preliminary and Final competition.

In the preliminary competition the national Association is responsible for choosing a conforming stadium and field of play and they are also responsible for liability insurance for the stadium (Article 15.1 and 17.2). The words "accessory equipment" (15.1) are apt to cover floodlights.

By way of contrast, in the Final Competition F.I.F.A. (in the form of the Organising Committee) has power to fix the dates and venues of the matches and (importantly) the times of kick off (Article 5.3; 5.4) this allows for daylight or floodlight conditions.

As I read these rules, the obligations on F.I.F.A. for the preliminary competitions are fewer and more general than in the finals. At the early stages the clear intention is to give more control to the National Associations at a time when many nations may wish to take part. In theory all affiliated nations are entitled to play upon submitting the proper entry form and paying a fee.

In the course of the main argument before me I was referred to a number of recent authorities mainly in the House of Lords. I now list these and the particular passages which were read to the Court from the speeches and opinions.

White v Jones [1995] 2 AC 207 (the case of the disappointed beneficiary) per Lord Mustill at 277 and Lord Browne-Wilkinson at 274; Caparo v Dickman [1990] 2 AC 605 (a case concerning the duties of auditors) per Lord Bridge at 617/8 and 627 and Lord Oliver at 632D to 633F; Murphy v Brentwood District Council [1991] 1 A.C, 398 (a Building control type of case) per Lord Keith at 471F, Lord Bridge at 481D and Lord Oliver at 485H to 487C; X Minors v Bedfordshire C.C. [1995] 2 AC 633 (a series of cases on parental abuse, sex abuse, education, dyslexia, special needs) per Lord Browne-Wilkinson at 739 A/B, 749D and 751C; Marc Rich & Co v Bishop Rock Marine Ltd [1996] 1 AC 211 (a shipping case); Stovin v Wise [1996] 1 A.C. 923 (a case concerning a highway) per Lord Hoffman at 948/9; Lord Nicholls at 931/3; Hill v Chief Constable of West Yorkshire [1989] 1 A.C. 53 (an alleged failure to arrest a notorious murderer) per Lord Keith at 60 A/C.

The Scottish authorities were Weir v National Westminster Bank 1994 S.L.T. 1251 (a case concerning a forged signature) at 1258 D to G. Coleridge v Miller Construction 1997 S.L.T. 485 (an electricity cable case) at 489C, 490 to J and 492; Forbes v Dundee District Council 1997 S.L.T. 1330 (a personal injury case) at 1340 B/C and 1347 B/C and Saeed v Waheed 1996 S.L.T. (Sh. Ct.) 39 at 45K.

There was no dispute on either side that the relevant principles of law governing this case are to be found in these cases and that there is no difference between English and Scots law. In these circumstances I consider it unnecessary and inappropriate for me to undertake any detailed analysis of my own into these precedents most of which are binding on me.

From them derive a series of propositions around which the arguments ranged. They are these. One, foreseeability of damage is not enough to bring home liability; Two, there must be proximity in the sense spoken of by Lord Oliver in Caparo and Murphy; Three, it must be fair, just and reasonable to impose a duty; Four, in general the trend now is to proceed incrementally by analogy with established cases; Five, in general it will be more difficult to establish a duty of care to avoid economic loss; and Six, the trend appears to be against imposing liability on public authorities.

In my view the respective criticisms of the defenders are both well founded and irresistible.

I deal first with F.I.F.A. There is no question here that they have undertaken any assumption of responsibility for what happened. No reliance was placed on the averment at 17A. The pursuer has no contract with F.I.F.A. or any other relationship. F.I.F.A. is not like a members club. Its only members are national associations. In a situation where the tickets were issued by the Estonian F.A. (who are not sued here) the rules do not confer any rights on the fans enforceable against F.I.F.A.

In my opinion a spectator at a sporting event has no "proximity" to the organisers. I exclude, of course, the well known category of decided cases where personal injury occurs to a spectator due to the organisation of the event or the safety of the stadium. A competitor at an event might have more proximity but I do not require to decide the point.

It is not for me in a case like this to make any incremental increase in the categories of liability in delict without some clear analogous case and there are no special reasons to do so here.

I also have to consider what is fair, just and reasonable. If this kind of claim was allowed, in my view, it would open the way to many claims by an indeterminate class of people disappointed at the outcome or organisation of a sporting event. That might even extend to people who watched an event on television. The insurance consequences for organisers would lead to great difficulties. In my opinion, the International Body must be able to apply its own rules without this kind of anxiety. On the above test, as laid down in the many authorities I cannot do other than find this case is not relevantly averred.

It is also my opinion that the case against the S.F.A. is equally irrelevant for similar but slightly different reasons, and they are these. The relevant rules for this match do not impose any duty on the S.F.A. over the time of the game and the decision to re-time was taken out of their hands. Any failure in duty over the floodlights was the fault of the Estonians in my view. There are no averments that the S.F.A. could have foreseen that the home team would not appear. With that background there are, in my opinion, no averments of sufficient proximity between the pursuer and the S.F.A. to create any duty.

That inexorably leads into the issue of what can be fair, just and reasonable. In advance of the fixture the S.F.A. cannot ensure that it will take place. Many things from flights to civil unrest could prevent it. It respectfully seems to me that all they could do would be to make representations. The primary cause of the loss, if any, is that the Estonians did not turn up and the pursuer lost a game to watch. None of that, in my view, amounts to an act or omission by the S.F.A. which would amount to a legal wrong giving rise to a right to reparation in delict.

There are further reasons why, in my opinion, the case against the second defenders is not relevantly averred.

In my opinion, the S.F.A. cannot be under any duty to ensure that the game is played on time. The match is arranged well in advance of the date for obvious reasons; publicity tickets etc. It is too high a duty to expect the S.F.A. to ensure that it is played on time. I am reinforced in this conclusion by the fact that nothing is said to be wrong with the stadium itself.

I do not think that it is anything to the point that both defenders expect spectators to travel and also expect to make money out of them from the game. While that may be important if the matter is governed by the law of contract there is no precedent for it giving rise to a duty of care in delict. The fact that the preliminary rounds lead to teams getting into the finals and revenue for F.I.F.A. do not make any difference in my view. Making money or profit is not the test.

I accept, of course, that if the game is not played the ticket paying fan will be disappointed but that, in my opinion, does not place him within the "proximity" as defined in the cases; at least as far as both defenders are concerned.

That leaves two other points which were argued to me viz. The trend against public authorities being held liable, and economic losses. I can deal with these briefly. I do not base my decision, relying on either of these propositions. I do not think that it is helpful to compare either defender to a public authority. Such authorities are often subject to statutory duties and enjoy statutory powers. That is not the case here where we have self regulating bodies with their own rules. These rules do not cover people such as the pursuer. The position is quite different to cases such as X Minors.

Also, the case is not based entirely upon economic loss, though most of it seems to be. Because there is an element of "solatium" I would not have dismissed the case upon the 'economic loss' argument alone.

I also heard an argument on jurisdiction. The dispute on this point is between F.I.F.A. and the pursuer, and can be simplified thus; if the case against the S.F.A. was dismissed then there was no jurisdiction against F.I.F.A. at all.

The matter arises in this way. F.I.F.A. are domiciled in Switzerland. Jurisdiction in a case like this is governed by the relevant European Convention. Domicile is the paramount ground and all other cases are either additions or exceptions. The only way there is initial jurisdiction in Scotland against F.I.F.A. is because the S.F.A, have been convened; and joint and several decree sought. The claim against the S.F.A. was groundless but was used as a device to convene F.I.F.A.

The pursuer responded by arguing that once F.I.F.A. were properly convened the Court had jurisdiction whatever happened to the case against the other defender. The matter had to be tested when the action began; and the whole purpose of Convention jurisdiction was to avoid duplication of actions in several countries. The allegation by F.I.F.A. was one of bad faith and abuse of process. That was both disputed and resented.

I now turn to examine the relevant statute and the authority of Kalfelis v Bankhaus Schröder etc. and Others [1988] ECR 5565

The statute governing the matter in Scotland is the Civil Jurisdiction and Judgments Act 1982 which provides in Section 3 the basis for jurisdiction. In Schedule 1 the relevant convention rules appear and for present purposes Articles 3 and 6(1) apply. These refer to domicile and then to "one of a number of defendants ...".

Thus there is jurisdiction on the basis of domicile and where there are several defendants on the basis of expediency. I was referred to the Jenard and Möller report on the Lugano Convention which deals (p. 776/7) with this matter. See the principal Act section 3(3)(a); 3A and 3B(2). Confirming the text of the earlier Brussels convention they say that the Article affecting co-defendants sued in a court where one is not domiciled requires "a connection" between the claim made against each. The report then contains the following expression "... action cannot be brought solely with the object of ousting the jurisdiction of the courts of the State in which the defendant is domiciled." They then refer to Kalfelis.

In that case the plaintiff, who was apparently a furrier, became involved in certain spot and futures transactions in silver bullion which ultimately resulted in a total loss to him.

Three other parties were involved viz the first defendant Bankhaus Schröder etc. (called by its new name H.E.M.A. for short in the report). That was a private Bank registered in Frankfurt and which was in liquidation. It had a subsidiary based in Luxembourg (which had a similar name and which I call "the Luxembourg bank"). The person with whom the plaintiff dealt was a Mr Markgraf who was employed by the Luxembourg Bank and is described as a procuration holder (a kind of agent).

The plaintiff sued both banks and the agent for what appears to be a failure to advise of the risks, for excessive commissions, and unjust enrichment He sued for almost half a million German Marks. He first sued in the Regional Court in Frankfurt (Landgericht). The Luxembourg bank resisted jurisdiction without success though the case against H.E.M.A. and Markgraf was dismissed. On appeal by both parties the Higher Regional Court in Frankfurt (Oberlandsgericht), that court upheld the earlier dismissal against H.E.M.A. and Markgraf but sustained jurisdiction against the Luxembourg bank; and indeed went on to uphold the claim based on unjust enrichment for about one half of the sum claimed.

Both the plaintiff and the Luxembourg bank appealed that decision to the Second Civil Chamber of the Bundesgerichtshof. The Judge Rapporteur's Report (5566/72) goes on to narrate (5567/8) that the Superior German Appeal Court confirmed the dismissal against H.E.M.A. and the agent but otherwise allowed the appeals by both the plaintiff and the Luxembourg bank.

It is not clear to me what the practical effect of this was at the stage of final appeal in Germany. It may relate to jurisdiction or the value of the claim or both. The German Court referred questions then to the European Court concerning inter alia the meaning of 'necessary connection' between the actions against the various defendants (5569).

What was not (my emphasis) referred, was the effect of dismissal against two of the parties during the various appeals; as affecting jurisdiction.. At 5570 the following appears:

"the parties, the various governments and the Commission all agree ... that the rules of jurisdiction should be considered with reference to the position when the matter was brought before the Landgericht ... so that the outcome of the various claims made ... at each stage of the procedure is irrelevant to the application of the rules on jurisdiction".

From the opinion of the Advocate General I take two matters. First is his proposal at 5578 that :

"The Convention ... requires the claims should be related in such a way that it is expedient to hear and determine them at the same time in order to avoid the risk of irreconcilable judgements resulting from separate proceedings...".

Second, is his view on attempts to deny jurisdiction - what has been called 'bad faith' or 'a device' in the present case. At paragraph 7 on page 5574 he said this:

"... A subjective criterion which would involve trying to decide whether or not the plaintiff was trying to deny any of the defendants the right to be sued in the Court which would normally have jurisdiction, would be difficult to apply in practice. Legal certainty would be poorly served by an analysis, as delicate as it would be uncertain, of the plaintiff's intentions ...".

The Judgement of the Court is to be found between pages 5581 and 5587; and for present purposes I extract two matters. On the issue of jurisdiction the Court decided that as Article 6 jurisdiction was an exception to principle, there had to be a connection between the claims of such a kind that it is expedient to determine the actions together to avoid irreconcilable judgements from separate proceedings. It was (I infer) for the German Court to determine independently what that connection was. (There is nothing further in the Report, or what was said to me, to tell me what the German Court finally decided on this point or what was the eventual outcome of the case).

The second matter of importance is to be found at page 5584, paragraph 12 where it is made clear that the matter of jurisdiction should be decided at the point where proceedings are instituted.

Reverting now to the case before me I hold that I ought to decide the issue of jurisdiction when the action was raised and free from any further procedural steps which may arise after that. I propose to take the wise advice of the Advocate General, and eschew any inquiry into bad faith. I do not think, anyway, that it arises at all in this case.

Here the liability put in issue is a joint and several one in delict. It all arises out of the same football match and surrounding circumstances many of which are agreed. I am quite unable to conclude that the separate claims do not have a sufficient connection or that it is inexpedient to determine the actions together.

In these circumstances it matters not to F.I.F.A. what happens to the claim against the S.F.A. The first plea for the first defenders must therefore be repelled. I do not find it necessary to go on to consider some more detailed points made about settlement against one party, failure on a minor point or the problem of triple conflicting decrees.

Accordingly on the whole argument I sustain the second plea for the first defenders and the first plea for the second defenders and dismiss the action. I repel the first plea for the first defenders. In view of the divided success I will put the case out By Order for a hearing on expenses.

OPINION OF R. G. McEWAN

(Sitting as Temporary Judge)

in the cause

JOHN MACDONALD

Pursuer;

against

FEDERATION INTERNATIONAL DE FOOTBALL ASSOCIATION AND OTHERS

Defender:

________________

Act: McDonald

Drummond Miller, W.S.

Alt: R.C. Connal

Solicitor

McGrigor Donald

Creally

W. & J. Burness, W.S.

2 December 1998


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