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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Evans v SMG Television Ltd & Ors [2003] EWHC 1423 (Ch) (26 June 2003) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2003/1423.html Cite as: [2003] EWHC 1423 (Ch) |
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CHANCERY DIVISION
Strand, London WC2A 2LL |
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B e f o r e :
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| CHRISTOPHER EVANS |
Claimant |
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| - and - |
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| (1) SMG TELEVISION LIMITED (2) SCOTTISH MEDIA GROUP (JERSEY) LIMITED (3) SMG PLC (4) KENTFARM LIMITED (5) GINGER RADIO LIMITED (6) VIRGIN RADIO LIMITED (7) GINGER MEDIA GROUP LIMITED |
Defendants |
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| - and - |
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| GINGER TELEVISION PRODUCTIONS LIMITED |
Part 20 Claimant |
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Hanover House, 14 Hanover Square, London W15 1HP) for the claimant
Mr Geoffrey Vos QC & Mr Anthony de Garr Robinson (instructed by Herbert Smith,
Exchange House, Primrose Street, London EC2A 2HS) for the defendants
Hearing dates: 19 March - 7 May 2003
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Crown Copyright ©
| Paragraph(s) | ||
| Part I | Introduction | 1 - 3 |
| Part II | The Issues | 4 - 12 |
| Part III | Principal Characters | 13 |
| A. Mr Evans and his Witnesses of Fact | 14 - 20 | |
| B. The defendants' Witnesses of Fact | 21 - 30 | |
| C. Expert Evidence | 31 - 43 | |
| Part IV | Virgin Radio and the Radio Industry | 44 - 52 |
| Part V | The Detailed Chronological History | 53 - 162 |
| Part VI | The Agreements | 163 - 165 |
| Part VII | The Presenter's Agreement and Related Issues | |
| A. The Terms of the Presenter's Agreement | 166 - 175 | |
| B. Novation | 176 - 189 | |
| C. Mr Evans's Obligations | 190 - 193 | |
| D. Breaches of Contract | 194 - 240 | |
| E. Discharge by Breach | 241 - 244 | |
| Part VIII | The Partnership Agreement | 245 - 257 |
| Part IX | The Sale and Purchaser's Agreement | |
| A. Terms of Agreements | 258 - 266 | |
| B. Issues of Construction | 267 - 276 | |
| C. The Character and Effect of the Circumstances | 277 - 285 | |
| Part X | Conclusion | 286 - 287 |
Mr Justice Lightman:
PART I
INTRODUCTION
PART II
THE ISSUES
PART III
PRINCIPAL CHARACTERS
(1) Mr Evans
(2) Mr Foster
(3) Mr Doshi
(4) Ms Charlotte Blenkinsop ("Ms Blenkinsop")
(5) Other witnesses
B. THE DEFENDANTS' WITNESSES OF FACT
(1) Mr Pearson
(2) Mr Hain
(3) Mr Jackson
(4) Mr Flanagan
(5) Mr Callum Spreng ("Mr Spreng")
(6) Ms Kathryn Jacob ("Ms Jacob")
(7) Mr Lee Roberts ("Mr Roberts")
(8) Mr Grace
C. EXPERT EVIDENCE
(1) Medical
"Mr Foster told Mr Pearson on 1 May 2001 that Mr Evans would not be able to present the breakfast show the following day. He said Mr Evans was ill, which was, so far as he was concerned, true."
It is to be noted that ill-health is not pleaded as excusing the failure of Mr Evans to present the Show.
"61. Mr Evans's reaction to these events [the events of 20 June 2001] and the intolerable pressure placed on him by the Virgin Radio management was to drink heavily during the rest of 20 June 2001 with the result that he was not able to attend work on 21 June 2001."
Paragraph 65(b) pleaded the provisions of the Partnership Agreement entitling Mr Evans to be absent for illness.
"70. [On the evening of 27 June 2001] Mr Evans was also examined by a doctor (Dr John Gayner) who concluded that Mr Evans manifested an acute anxiety state resulting from chronic stress. He advised him that he needed time off."
(2) Services and standards of a first class presenter
(3) The business life of a commercial radio station
(4) Accounting evidence
PART IV
VIRGIN RADIO AND THE RADIO INDUSTRY
"We had to [decide dates for holidays quite a long time in advance] because we had to plan for other disc jockeys coming in, we had a massive schedule — you had to do that when you are making radio shows, because you cannot disenfranchise the listeners."
i) is a leading national commercial radio station;
ii) is the only national commercial station with a mainstream popular music format; and
iii) targets male and female listeners aged between 25 and 34 (a market which is highly attractive to advertisers and sponsors).
80 per cent of its revenue is derived from the sale to advertisers of advertising spots (to which nine minutes is allocated in every hour), 15 per cent from promotions and 5 per cent from sponsorship.
i) to make itself attractive to its target market, and its core listeners within that market, who are those likely to spend a considerable part of their day listening to radio. To achieve this objective, it carefully controls both the format of, and the music played on, all its shows. It conducts extensive research and, on the basis of that research, it maintains playlists of approved music and draws up schedules of the music to be played on each programme;
ii) to maintain and foster the relationships it has with clients and advertising agencies. Those relationships depend on Virgin Radio's ability to deliver the advertising services it offers in the manner and form which it has agreed with them.
PART V
THE DETAILED CHRONOLOGICAL HISTORY
i) Mr Evans was to receive some £70 million, representing 31 per cent of the total consideration;
ii) Mr Evans's consideration (or rather its value), was not all to be paid immediately. Under the Option Deed over a third of his consideration (then valued at some £26 million) was effectively payable through two tranches of share conversions over two years;
iii) the Presenter's Agreement was to continue in force without any change to the terms of or the parties to the Presenter's Agreement;
iv) to reflect the change of ownership, some changes were however made to the Partnership Agreement; and
v) the vast majority of the purchase price of £225 million was attributable to Virgin Radio.
i) Mr Evans no longer used any of the Team;
ii) he ceased to be the sole presenter and co-presented the Show with the previous show's sports announcer Webbo, who was not up to the job;
iii) he engaged the services of Ms Pepper and Mr Pritchard in connection with the Show;
iv) there was an increased emphasis on sport (making the Show less attractive to female listeners);
v) the show was "blokey"; and
vi) he used poor quality sound recordings.
"Following a sustained audience decline Chris Evans has decided to reformat his show using a completely new cast of characters. It is too early to gauge the success of this. Whilst this should ultimately increase the audience, it could lead to an initial fall."
As Mr Pearson made clear in his evidence, whilst he regarded the situation arising from Mr Evans's policy of non-communication and non-co-operation as critical and the decline in audience for the Show (in contrast to the success of the rest of the station) as serious, he had every confidence that the entry on the scene the previous day of Mr Jackson would see a restoration of relations and the combination of the talents of Mr Evans and Mr Jackson would bring about a restoration of fortunes for the Show. He could not anticipate that Mr Evans would maintain a continuing policy of non-communication and non-co-operation with Mr Jackson whose appointment he had so enthusiastically supported. He informed Mr Flanagan of the full situation but considered it premature to include a reference to Mr Evans's behaviour in the report to the Board until he saw how things worked out.