McGill v The Sports and Entertainment Media Group & Ors [2016] EWCA Civ 1063

Case No A3/2014/3398

[2016] EWCA Civ 1063

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

Venue MANCHESTER DISTRICT REGISTRY

Case No 3MA 40026

MERCANTILE COURT

HHJ WAKSMAN QC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 04/11/2016

Before

LORD JUSTICE LLOYD JONES

MR JUSTICE HENDERSON

Between

ANTHONY McGILLAppellant

THE SPORTS AND ENTERTAINMENT MEDIA GROUP AND OTHERSRespondents

Mr Charles Douthwaite (instructed by C J Jones Solicitors LLP) for Appellant

Mr Edward Bartley Jones QC (instructed by Richard Slade and Company) for Respondents

(Neither counsel, nor their instructing solicitors, appeared below)

Hearing Hearing date: 12 October 2016

Judgment

Introduction and background

[1]Gavin McCann (“Mr McCann” or “the Player”) is a former professional footballer. On 7 June 2007, at a time when his career in the Premier League was nearing its end and his existing contract with Aston Villa Football Club (“Aston Villa”) had about one year left to run, terms were agreed for Mr McCann’s transfer to Bolton Wanderers Football Club (“Bolton”) for a transfer fee of £1 million plus VAT. Bolton also agreed to pay an agent’s fee of £300,000 to the Sports and Entertainment Media Group (“SEM”), the first defendant in the present action, pursuant to an agency contract between Bolton and SEM which was dated 1 June 2007 but not signed until 8 June. The remainder of the formal paperwork relating to the transfer was signed on 11 June 2007.

[2]The Chairman of Bolton, Philip Gartside, described the transaction at the time as one of the easiest deals he had ever done.

[3]The claimant and appellant, Anthony (Tony) McGill, is, and at all material times was, a licensed football agent. His basic complaint, pursued by him with dogged, if intermittent, persistence since 2007, is that in April of that year he made a binding oral agreement with the Player to act as his exclusive agent so as to get him a new contract, whether with Aston Villa or a new club, before the end of the then current transfer window on 31 August 2007.

[4]Acting for the Player under this oral contract, Mr McGill says that he then put together a deal for the transfer of the Player to Bolton, which Bolton indicated it would in principle be willing to accept. At that stage, however, SEM (which also provided agency services) found out about the proposed deal from the Player, and (as Mr McGill alleges) induced the Player to breach his contract with the claimant by dispensing with his services, thus enabling SEM to take over the proposed deal and finalise it on essentially the same terms as Mr McGill had already negotiated. In this way, SEM obtained an agent’s commission of £300,000 from Bolton when the deal completed, without having had to do any real work to earn it. Conversely, Mr McGill was deprived of the similar fee which he says he could have expected to earn upon completion of the deal had his contract with the Player been allowed to run its course.

[5]There is a further complication, however, which it is convenient to introduce at this early stage. Under the Football Agents Regulations made by the Football Association (“the FA”) which took effect on 1 January 2006 (“the 2006 FA Regulations”), any representation contract between a licensed agent and either a club or a player had to be made in a standard written form containing the entire agreement between the parties, and the agent was obliged to ensure that a copy of this document was provided to the club or player before providing any of his services under the contract. It follows from these provisions that the alleged oral contract upon which Mr McGill relies was made in clear, indeed blatant, contravention of the 2006 FA Regulations, and would have been unenforceable in any forum governed by the Regulations, including any arbitration under the auspices of the FA. It also follows that Mr McGill would in practice have been unable to obtain payment of any fee due to him under the oral contract, unless and until the position was regularised by his entry into a written agreement which complied with the Regulations; and, even then, any enforceable right to payment of a fee would derive from the written agreement itself, not from the prior oral contract.

[6]On the other hand, as counsel for Mr McGill rightly reminded us, the 2006 FA Regulations had no statutory force. In law, they are no more than the rules of an unincorporated association, by which its members (and anybody else who agreed to abide by them) were contractually bound.

[7]Against this background, Mr McGill began by making a number of complaints to the FA, but these did not result in the FA taking action against anyone. On 20 November 2007, Mr McGill then started proceedings against the Player alone in the Newcastle County Court, seeking damages for breach of contract and other relief. This action (“the 2007 Action”) was subsequently transferred to the Queen’s Bench Division of the High Court, in the Mercantile Court list at Manchester. In his particulars of claim, which were settled by counsel, Mr McGill sought in various ways to enforce the provisions for remuneration in his oral contract with the Player, or to obtain damages for their breach, and in the alternative payment on a quantum meruit basis of a reasonable sum for the services which he had provided to the Player. The action was defended on grounds which included a denial that the oral agreement had been entered into, a denial of any intention to create legal relations, a contention that any alleged agreement was void for uncertainty, and denials that Mr McGill had ever been requested to provide, or had provided, any services to the Player.

[8]The trial of the 2007 Action was due to start on 7 September 2009, but it was settled on that day by a Tomlin order whereby the Player agreed to pay Mr McGill £50,000 in full and final settlement of all claims arising out of the matters set out in the statements of case in the action, including any outstanding orders as to costs. Mr McGill was willing to settle on this basis, even though (according to him) his own legal costs were by then around £155,000.

[9]There matters rested until nearly three years later, on 26 July 2012, Mr McGill started the present action (again in Newcastle, although it was subsequently transferred to the High Court in Manchester). There were nine defendants, falling into two groups, which I will call “the SEM defendants” (1 to 4), and “the Bolton defendants” (5 to 9). The first defendant was SEM itself. The other SEM defendants were Jerome Anderson (who was the CEO of SEM at the time), Jeffrey Weston (another licensed football agent, employed by SEM) and David Sheron (who was also employed by SEM, although not a licensed agent). Mr Sheron had been a personal friend of the Player’s since about 1995, when the Player was playing for Everton. Mr Sheron had a central role in the events which led up to the dismissal of Mr McGill by the Player, and the subsequent conclusion of the deal with Bolton, even though (being unlicensed) he could not himself legitimately act as the Player’s agent.

[10]The fifth defendant was Bolton, the other Bolton defendants being Mr Gartside, Simon Marland (Bolton’s club secretary), Samuel Lee (Bolton’s then manager), and Frank McParland (Bolton’s general manager).

[11]The causes of action pleaded by Mr McGill against the defendants were, in summary, as follows:(1) inducing a breach of contract (as against SEM, Mr Sheron, Bolton and Mr McParland);

(2) breach of confidence (as against SEM and Bolton);

(3) conspiracy to injure (as against all the defendants);

(4) conspiracy to use unlawful means (as against all the defendants);

(5) unlawful interference with the actions of the Player (as against all the defendants);

(6) quantum meruit (as against Bolton); and

(7) a restitutionary claim (as against SEM) based on SEM’s alleged unjust enrichment.

[12]These claims were all vigorously denied by all the defendants. The SEM defendants and the Bolton defendants were separately represented, although there was no separate representation within each group of defendants.

[13]The trial of the action took place before His Honour Judge Waksman QC, sitting as a judge of the High Court, over eight days between 7 and 22 April 2014, with final submissions being made on 5 June 2014. The judge handed down his written judgment on 15 September 2014. He found that none of Mr McGill’s various claims had been made out, so the action was dismissed in its entirety. The judge was very critical, however, of much of the evidence given by the defendants and their witnesses, and he concluded that they had fabricated some key events in a misguided attempt to improve their position. Taking these matters into account, he ordered Mr McGill to pay only 30% of the costs of the SEM defendants, and 80% of the costs of the Bolton defendants, for the detailed reasons which he gave in a judgment on costs delivered, after his main judgment had been handed down, on 24 September 2014.

[14]Mr McGill’s claims which came closest to success were those for inducement of breach of contract, as against SEM and Mr Sheron, and for unlawful means conspiracy, as against all the SEM defendants. In respect of these claims, the judge was satisfied that all the ingredients of the causes of action were made out apart from causation and loss. The judge held that all of the other economic tort claims failed for one or more additional reasons, apart from the failure on causation and loss which was common to all of them. Furthermore, in relation to the claim for unlawful means conspiracy, the only unlawful conduct which the judge found to be established as against the SEM defendants was the inducement of breach of contract for which Mr Sheron was directly, and SEM vicariously, liable. In those circumstances, the conspiracy claim against the SEM defendants added nothing of any real significance to the inducement claim, apart from the fact that it established liability on the part of Mr Anderson and Mr Weston as well as SEM and Mr Sheron.

[15]In relation to the inducement claim, the judge was satisfied, having heard the evidence, that:(a) the oral contract alleged by Mr McGill was concluded at a meeting between himself and the Player at the Preston Marriott Hotel late on the evening of Friday, 6 April 2007;

(b) the contract was not void for uncertainty, or for lack of intention to create legal relations;

(c) the terms of the contract provided for Mr McGill to act as the Player’s exclusive agent until 31 August 2007, with the aim of obtaining a new contract for the Player at Aston Villa or another club, for at least two more years after his existing contract ran out, with wages of around £26,000 per week to ensure that the Player would be covered for the payment of any fee and/or tax thereon, and that the Player would pay Mr McGill a fee of either 5% or 10% of his new wages depending on whether the fee was ultimately paid by the club;

(d) Mr McGill then acted on the Player’s behalf pursuant to the agreement, and on 28 May 2007 he reached an agreement in principle with Mr McParland for the transfer of the Player to Bolton, provided the figures did not deviate too much from those put to Mr McParland by Mr McGill (namely a transfer fee of £1 million, weekly wages for the Player of around £26,000, and a three year deal);

(e) by this time, however, Mr Sheron had got wind of the Player’s planned move, and Mr McGill’s role in it, and he decided to try and get involved as agent himself; with the result that

(f) SEM, acting through Mr Sheron, then persuaded the Player to dismiss Mr McGill as his agent, representing to him that, if he did so, SEM would act as agent for Bolton when the deal was concluded, so the Player would not be liable for any income tax in respect of the agency fee paid to SEM by Bolton.

[16]In paragraph [139] of the judgment, the judge said that Mr McGill’s alleged loss was the commission he would have earned but for the inducement to breach of contract committed by SEM. That loss was by then quantified at £300,000, as it was for all of the alleged economic torts. The judge thought it was clear from the re-amended paragraph 133 of the particulars of claim that the only way in which Mr McGill finally put his claim on causation and loss was to say that, on the balance of probabilities, his oral agreement with the Player would have been reduced to writing, in belated compliance with the 2006 FA Regulations, by the close of the transfer deal. The judge considered that the case had not been put before him on the basis of loss of a chance: see the final sentence of [141], quoted below.

[17]Approaching the matter in this way, the judge was not satisfied that the Player would have signed such a written agreement. He expressed his reasons for reaching this conclusion as follows:

“140. …There is in fact no real evidence that he would have done so. He was certainly unwilling to do so when Mr McGill proffered him [a written agreement] on 6 April. There is no evidence (or plea) as to when it would have been that he would have signed such an agreement. But if left to the last moment, Mr McCann might have decided simply not to sign. He could have agreed his terms personally. Mr McGill would not have been on strong ground in (for example) saying that the club should not complete any paperwork in respect of Mr McCann until the issue was resolved because, contrary to the Regulations, he had not in advance obtained a written agreement. Having heard and seen Mr McCann I do not believe that it would have been beyond him to refuse to sign an agreement. After all, it is part of the reason why (according to Mr McGill’s case and as I have found) … he was seduced away from Mr McGill by Mr Sheron. 141. Moreover it was never put to Mr McCann that he would have signed a written agreement by the end. Mr Budworth, for Mr McGill, did not deal with this point when making his closing remarks. Having accepted that by reason of the amended paragraph 133 [of the particulars of claim] he needed to prove that this would happen (given particular emphasis by Mr Berragan [counsel for the Bolton defendants] in his oral closing submissions) he simply argued that it would have done. That fact is not made [out] and even the evidence of Mr McGill (which was not really directed to this issue) was thin to say the least. Possibly there might at the end have been some discussions between Mr McCann and Mr McGill as to what fee Mr McCann (or perhaps Bolton) would agree to pay, but the amount is unclear and the case has not been put on the basis of loss of a chance. 142. That being so I am quite unable to find that Mr McCann would have signed a representation agreement such that a commission would then have been paid out to him. That means that the claim founded upon inducement must fail.”

[18]The judge then said that this “might seem an unfortunate result”, since he had upheld Mr McGill’s factual contentions on the preceding matters, but:

“(a) it must follow given how Mr McGill’s case was eventually put and (b) part of the problem for Mr McGill is and has always been that he did not have a written representation agreement with Mr McCann as the Regulations required. To that extent he was always at risk.”

[19]Mr McGill now appeals to this court, with permission granted by Floyd LJ on 6 February 2015, from the dismissal by the judge of his claim against the SEM defendants. The first six grounds of appeal relate to the claim for inducing a breach of contract. The judge’s conclusions on loss and causation are said to be wrong, both in law and on the facts. As a matter of law, it is contended that the judge erred when he found that it was necessary for Mr McGill to prove that the Player would have signed a written agreement. The correct analysis is said to be that Mr McGill lost the opportunity of being paid a fee under a written representation agreement. This opportunity was real and valuable, and should have been assessed by the judge on a percentage basis, whether the chances of a fee being paid to Mr McGill were more or less than even. In relation to the facts, it is contended that the judge’s conclusion that the Player would not have signed a written agreement was “clearly wrong” and “entirely against the weight of the evidence”, and indeed “perverse” in circumstances where SEM and Bolton had eventually signed a written agreement for SEM to be paid a fee of £300,000.

[20]The remaining grounds of appeal relate to unlawful means conspiracy, and unjust enrichment. In relation to the former, it is said that the judge was wrong to dismiss the conspiracy claim on the ground that no loss had occurred, for the same reasons as he erred in finding that the claim of inducing a breach of contract was not made out. In relation to unjust enrichment, it is said that the judge either failed to determine the claim, or misunderstood it. He should have held that the claim for unjust enrichment against SEM succeeded, because SEM had been enriched, the enrichment was at Mr McGill’s expense, and it was also unjust.

[21]By a respondent’s notice filed on 18 March 2015, the SEM defendants ask this court to uphold the judge’s order on a number of different or additional grounds which may be summarised as follows:(1) the judge erred in law, or in mixed fact and law, in holding that the Player and Mr McGill entered into an oral contract on 6 April 2007, because they had no intent to create legal relations and/or the terms of the contract were uncertain;

(2) the judge similarly erred in holding that any of the SEM defendants were at any time acting as agent for the Player, there being no proper factual basis upon which he could so find, and such findings being contrary to other findings of the judge;

(3) the judge was therefore wrong in law, or in mixed fact and law, to find that the SEM defendants, or any of them, induced the Player to breach his contract with Mr McGill;

(4) the judge likewise erred in law, or mixed fact and law, in finding that the SEM defendants had knowledge of any relevant contract between the Player and Mr McGill, nor could they have had knowledge of any contract which would have entitled Mr McGill to payment under and in accordance with the 2006 FA Regulations;

(5) Mr McGill was in any event debarred from bringing the present action against the SEM defendants, because the settlement of the 2007 Action had fixed the full measure of his loss as against the Player and left him with no further loss which he could recover from anybody else: see the decisions of the House of Lords in Jameson v Central Electricity Generating Board

[2000] 1 AC 455

(“Jameson”) and Heaton v AXA Equity and Law Assurance Society Plc

[2002] UKHL 15

[2002] 2 AC 329

(“Heaton”);

(6) the judge was right not to address any unjust enrichment claim, because it had been abandoned; and

(7) the unjust enrichment claim was in any event bad in law, and (if still live) should be dismissed.

[22]The contentions raised in the respondent’s notice were fleshed out in the skeleton arguments of counsel now instructed for the SEM defendants, Edward Bartley Jones QC, who did not appear below. There has also been a change of representation for Mr McGill, who now appears by Charles Douthwaite. I record my gratitude to both counsel for their concise and well-focused oral submissions, which enabled the appeal to be heard in approximately half the time which had been set aside for it.

The 2006 FA Regulations: representation contracts and activities by agents

[23]The judge dealt with this important part of the background to the case at [27] to [30] of his judgment. No criticism is made of these paragraphs on either side, and the simplest course is to set them out almost in full:

“27. The [2006 FA Regulations] governed the position of football agents at the time and imposed duties on Clubs and Players in relation thereto as well as upon Agents. The following provisions are material to this case: (1) By Article 2.2 an Agent meant a person who undertakes to facilitate the transfer or registration of a Player from one Club to another or who undertakes to negotiate terms of contracts between Players and Clubs; (2) By Art. 2.4 a Licensed Agent is an Agent holding an FA licence. (3) By Art. 2.6 a Transaction meant any negotiation or arrangement or deal intended to facilitate the transfer of a Player from one Club to another or effect the negotiation or renegotiation of terms of contracts between Players and Clubs; (4) By Arts. 3-9 provision is made for the obtaining of a Licence for the Agent; (5) There are then three separate provisions dealing with “tapping up”: (a) The first is in the section which imposes duties on Players. By Art 10.10: “Whilst under contract with a Club, a Player or any person (which includes but is not limited to an Agent) on behalf of a Player, shall not enter into negotiations or make any approach with a view to facilitating or effecting the transfer of that Player to another Club, unless: the Player’s current Club has provided express written permission to do so…” [Similar restrictions are then imposed on Clubs and Agents by Arts. 12.14 and 14.9 respectively] (6) By Art.10.3 the Licensed Agent’s name and signature and number must appear on any relevant contract where the Player used such an Agent and by Art.10.4 if no such Agent was used, that must be stated, too; (7) By Art. 12.2 the Club is under a duty to satisfy itself that an Agent is appropriately licensed and/or entitled to act in such a capacity; (8) By Art. 12.3 the Club is under a duty to satisfy itself that an Agent who purports to represent a Player or another Club has entered into the requisite representation agreement (see Art. 14.12 below). (9) By Art. 12.4 the Licensed Agent’s name and signature and number must appear on any relevant contract where the Club is represented by an Agent and by Art. 12.5 if no such Agent was used, that must be stated, too; (10) By Art. 14.3 originals of the written representation contract must be lodged in triplicate with the FA within 5 days of execution; (11) By Art. 14.4 the Licensed Agent may only be remunerated by one party to a Transaction, i.e. he cannot be paid by both Player and Club; but by Art. 14.5 this does not preclude a Club from paying to the Licensed Agent the fee due from a Player under the contract he has with the Agent provided that the Player will remain liable for any tax liabilities that arise; (12) By Art. 14.5, Art. 14.4 does not preclude payment being made by a Club to a Licensed Agent on behalf of a Player who has entered into a representation agreement with the Agent; (13) By Art. 14.12: “A Licensed Agent must have concluded a written representation contract with the Club or Player, on the appropriate standard form agreement set out in the Appendices to these Regulations. This document must contain the entire agreement between the parties. The Licensed Agent … must ensure that a copy of this document is provided to the Club/Player before the Licensed Agent provides any services to the Club/Player to which the terms contained in the contract relate.” (14) By Art. 23.2 any dispute between a Licensed Agent, Player and/or Club may be dealt with between the parties under the FA’s own arbitration rules. 28. An Explanatory Note on the work of an Agent set out a non-exhaustive list of activities for which an individual needed to be a Licensed Agent. They include negotiating with a Club on behalf of a Player, personally representing the interests of either, discussing the terms of possible deals with Players or Clubs, and facilitating a Transaction by discussing the availability of a Player with a Club. An individual who does not hold a licence may carry out administrative duties including providing normal secretarial support to a Licensed Agent … 29. In terms of practice, if the Licensed Agent acted for the Player, but the Club paid, the Player would receive from the Club a P11D tax form saying that the Player had received a benefit in kind for which he would have to pay the tax. Until 1 September 2007 it was possible to have a “dual representation” contract where the Licensed Agent acted for both the Player and the Club although only shown as acting for one … Sometimes an Agent would in truth be acting for the Player under a verbal contract but then later make a written representation agreement with the Club. This was known as “switching”. 30. Where the Agent acted for the Club, the Club would typically reclaim the VAT it had paid on the fees due to the Agent. It could not have done so where it was merely discharging the Player’s liability for fees due to the Agent under a contract between them. Prior to the events in question HMRC had been investigating this and had concluded that even though the agreement was between the Agent and the Club, in truth the Player gained a benefit as well and so the Club should not be able to reclaim all the VAT. After discussions with HMRC on this issue, Bolton reached a settlement in 2011 whereby it paid back to HMRC 50% of the VAT reclaimed in the years 2003/4 to 2009/10 and paid NIC based on 50% of the agency fees paid over the same period.” (a) The first is in the section which imposes duties on Players. By Art 10.10: “Whilst under contract with a Club, a Player or any person (which includes but is not limited to an Agent) on behalf of a Player, shall not enter into negotiations or make any approach with a view to facilitating or effecting the transfer of that Player to another Club, unless: the Player’s current Club has provided express written permission to do so…” “A Licensed Agent must have concluded a written representation contract with the Club or Player, on the appropriate standard form agreement set out in the Appendices to these Regulations. This document must contain the entire agreement between the parties. The Licensed Agent … must ensure that a copy of this document is provided to the Club/Player before the Licensed Agent provides any services to the Club/Player to which the terms contained in the contract relate.”

[24]The process of “switching”, as described by the judge in [29] above, evidently involved a breach of the Regulations, because prior to the switch the agent would have been acting for the player under an oral contract. Nevertheless, it seems to have been common ground that this did occur in practice, and the FA would not object so long as a compliant written representation agreement with the Club was entered into. Support for this may be found in the written evidence of Mr Marland, whom the judge found to be “mainly credible”. In his capacity as the club secretary of Bolton, he was in general responsible for agreeing the terms of a player’s transfer, including the payment of commissions, and finalising all transfer-related documentation. In paragraph 24 of his witness statement dated 24 January 2014, Mr Marland said he was unaware why the representation contract between Bolton and SEM had been dated 1 June 2007, although it was not signed until 8 June. He then said (the emphasis is mine):

“I understand that the Claimant alleges that the dating of the contract is part of a conspiracy to cut him out of this deal, but this was certainly not the case. In any event, it would not have mattered when the representation contract was entered into with an agent provided that this was done at the time or prior to the transfer completing and the representation contract was lodged with the FA thereafter, which it was.”

[25]Mr Marland went on to explain that for approximately the last ten years it had been Bolton’s policy to disclose all agency payments made by the club as a benefit in kind for the player concerned. This was so, whether the agent had acted solely on behalf of the club or the player, or by way of dual representation with the club discharging the player’s liability to the agent. Bolton’s reason for adopting this policy was “the increasing number of HMRC investigation[s] into football transfers”, and it was done “in an effort to be totally transparent”. Where, as in the present case, an agent had been appointed to act on behalf of the club, then if the player considered that he had not received any benefit from the club’s payment of agency commission to the agent, the club would assist the player to provide documentation to HMRC in support of his case. Pursuant to this policy, Bolton issued P11D forms to the Player for each of the financial years 2007/08, 2008/09 and 2009/10, reflecting the three annual instalments of £100,000 by which Bolton paid the commission due to SEM.

[26]This must have been an unwelcome development for the Player, because the evidence shows that he had a strong aversion to paying tax in respect of agency services from which he had benefited. There had been an occasion before 2007, at a time when he was represented by Mr Weston of SEM, when the Player found to his displeasure that he was faced with a tax bill on the basis that he had received a benefit in kind. The Player felt that Mr Weston had let him down, and said he never wanted to use an agent again. When Mr Sheron later lured the Player away from Mr McGill, he was able to tempt the Player with the prospect that, if he left Mr McGill, he would not find himself liable for any tax in relation to the transfer.

[27]As

the judge found, at [111]:

“I accept that Mr Sheron tempted Mr McCann with the proposition that SEM was or would be acting as agent for the Club so that there would be no agency agreement for Mr McCann to enter. That meant of course that there was no basis for Mr McCann being liable for NIC. Given the tax problem which Mr McCann had faced earlier it is inconceivable that Mr Sheron did not also assure him that by SEM acting for the club it could not arise. … There is at least partial support for this in what Mr McCann told the FA in his interview because there he said that he told Mr Sheron that he would not pay any tax and Mr Sheron told him that he need not worry – he would not pay a thing because SEM would be working for Bolton. Mr McCann then agreed to dismiss Mr McGill and did so and in effect had SEM as his agent (albeit not pursuant to any agreement) until at a late stage this was turned into an agency for Bolton.”

The facts

[28]The judge analysed the evidence, and found the facts, with meticulous care, mainly at [32] to [127] of the judgment. His general assessment of the witnesses is to be found at [25]. Of the SEM defendants, he considered Mr Anderson to be “a very unreliable witness”, while Mr Sheron was “not a convincing witness” and Mr Weston “was unconvincing also”. In relation to the Player and Mr McGill, the judge said:

“Mr McCann was a very unsatisfactory witness and on occasion he was clearly untruthful. He also tended to evade questions by invoking the mantra that he did not want to use an agent and therefore did not use Mr McGill. As for Mr McGill himself, I thought he was basically credible although he was prone to exaggeration sometimes …; and he could also lose objectivity because he has become so engrossed with this case which has become something of a campaign not only against the Defendants but also the FA. There are also some inconsistencies in his various accounts which need to be dealt with.”

[29]The judge recorded that he had been significantly assisted by a number of contemporaneous documents, and had been “very greatly assisted” by two sets of telephone records, including in particular the itemised mobile phone bills for Mr McGill and the Player over the relevant period.

[30]For the purposes of this appeal, it is unnecessary for me to recount all the facts in detail. For the most part, it will be sufficient to focus on the particular facts which are relevant to the issues raised by the appeal and the respondent’s notice. I will, however, mention here some of the judge’s key findings.

[31]As I have already said, the Player’s friendship with Mr Sheron dated back to about 1995. Then, as now, Mr Sheron worked for SEM. In November 1998 the Player signed a four year contract with Sunderland upon his transfer there from Everton. This contract was subsequently extended on two occasions, by agreements made in January 2000 and June 2002. In the negotiations for all these contracts the Player was represented by Jerome Anderson Management Group Limited, which appears to have been the personal company of Mr Anderson.

[32]In July 2003, when his contract with Sunderland still had three years to run, the Player joined Aston Villa. The transfer document stated that the club used Mr Weston as its agent. By a written agreement of the same date, SEM (through Mr Weston) agreed to act as intermediary between Sunderland and Aston Villa in procuring the transfer of the Player. The fee was payable by Aston Villa in three yearly instalments. By a further agreement in July 2005, the Player’s contract was extended to 30 June 2008. Like his original contract, this stated that he had not used the services of an agent. On the making of the extension, Aston Villa had to pay a further fee by three annual instalments. It was in connection with one of these transactions that the Player found himself landed with a tax bill, for which he blamed Mr Weston. Presumably HMRC considered the reality to be that Mr Weston had provided agency services to the Player under an oral agreement, and that Mr Weston then “switched” his agency to the club. Mr Weston denied that he had engaged in switching, but the judge found his evidence in relation to his association with the Player while at Aston Villa “implausible”: see the judgment at [36].

[33]At [37] to [39], the judge discussed the role of Mr Sheron, concluding that all the evidence about his earlier association with the Player pointed to his having acted as the Player’s agent in connection with the later transfer to Bolton, even though he never held a licence.

[34]The judge then described the events which led up to the conclusion of the oral contract between the Player and Mr McGill. As he rightly said, the existence or not of this agreement was a pure question of fact, to be resolved principally by deciding which of them was telling the truth about it. The judge said he had no doubt in concluding that it was Mr McGill who was telling the truth, and “unless otherwise indicated wherever there is a conflict of evidence between them I prefer Mr McGill’s account”: [41]. In the period leading up to 6 April 2007, there was a marked increase in text and phone contact between them, which the judge accepted was about the Player appointing an agent because he was concerned about his future at Aston Villa. Mr McGill and the Player had been friends since about 1998, and the Player told Mr McGill that he had a major problem with Mr Sheron and SEM because of the large tax bill he had received. It would therefore have been natural for the Player to be looking for a new agent, and on 27 March 2007 the Player told Mr McGill that he wished to go with him as his agent. In reaching this decision, the judge found that the Player was following advice given to him by his “missus” in bed the previous night.

[35]Mr McGill was in Monaco at the time, but it was agreed that he would come to the players’ hotel, the Preston Marriott, on the evening of Friday 6 April and speak to the Player before Aston Villa’s game against Blackburn the following day. In preparation for the meeting, Mr McGill’s son Joshua printed out a standard form contract for his father to take with him. The Player’s details were inserted in the draft. The judge was satisfied that the meeting did indeed take place, and that its purpose was to discuss Mr McGill’s appointment. Since the Player’s evidence was that no such meeting had taken place, the question of what was agreed turned essentially on Mr McGill’s account of what happened.

[36]As to this,

the judge made the following findings:

“46. After ascertaining what Mr McCann’s intentions were about staying at [Aston Villa] with a new contract or seeking a transfer, they discussed new personal terms. Mr McCann said that he was earning around £21,000 per week basic or £23,000 with add-ons (in fact it was somewhat less) and he would want a 3 year deal from them so, with [Aston Villa] another 2 years on top of his existing contract. Mr McGill agreed to speak to Mr O’Neill [the manager of Aston Villa] the following morning. He would need the latter’s consent if he was to start looking at other clubs for Mr McCann. 47. Mr McGill then produced the draft contract from his briefcase but Mr McCann immediately said that he would not sign a written contract. Mr McGill said that it was a standard 5% fee with no fee being payable at all if the buying club agreed to pay it for him. Mr McGill had wanted a two year exclusive agency but agreed to limit it to the close of the present transfer window (31 August) at Mr McCann’s request. Mr McCann agreed that Mr McGill would have to get permission from [Aston Villa] before other clubs could be approached. This was a reflection of the “tapping up” rule. Mr McCann again said that he would not sign a written contract and cited his tax problem. Mr McGill responded by saying that any tax liability would be covered because Mr McCann’s wages would be “grossed up” i.e. he would secure for Mr McCann more wages than he was currently getting; in that way, the extra income would cover not only any tax liability if the buying club paid the fee for him but even the amount of the fee itself if [Mr McCann] had to pay it personally. Accordingly, Mr McGill would seek wages in the order of £26,000 per week, Mr McCann was not otherwise too bothered about whether he secured a significant wage increase, the main point being to get him a further two years for his playing career. (Mr McCann himself admitted in evidence that he would have been happy with the same money). Mr McCann told Mr McGill that while he would not sign a written contract he would agree terms verbally and this is what he did. They shook hands with Mr McGill saying he would get started straight away and with Mr McCann asking him to speak to Mr O’Neill the following morning (which he did).”

[37]The judge then considered various points which had arisen in Mr McGill’s cross-examination. In relation to “the all-important grossing up”, the judge accepted that what Mr McGill said was true, even though he had made no mention of it in his witness statement in the 2007 Action. The judge said at [50]:

“The simple obligation for Mr McGill was to secure a large enough increase to cover the fee and/or the tax thereon. He recognised that if the club paid the fee anyway the increased amount may end up being a bonus. I see that but I do not consider it affects the truth of what Mr McGill said. At the end of the day I accept the force of Mr Budworth’s [counsel for Mr McGill’s] point which is that given Mr McCann’s lack of interest in higher wages the only sensible explanation for the agreement to seek them is the grossing-up point …”

[38]The judge also found, at [51], that had it proved necessary for Mr McGill to “switch”, by making a representation contract with the buying club, he would have done so. The judge added:

“But the overall point was that he would simply “sort” the fee and tax payment out for Mr McCann so that he would not be out of pocket.”

[39]The judge concluded his analysis of this part of the evidence by saying, at [55], that on any view Mr McGill thought he had made an agreement. For example, he told a friend of his later that night that he was now the Player’s agent; and at 11.07 pm he texted Mr O’Neill to ask for a meeting in the morning. As to the terms of the agreement, the judge said at [56]:

“Accordingly, I accept that Mr McGill and Mr McCann agreed that (1) Mr McGill would act as Mr McCann’s exclusive agent to get him a new contract at [Aston Villa] or with another club for the period until 31 August 2007; (2) He would procure at least two more years after his present contract ran out with wages at around £26,000 to ensure that he would be covered for payment of any fee and/or tax thereon; (3) If the club would not pay Mr McCann would pay a 5% fee and if it did, Mr McGill would be entitled to charge a 10% fee.”

[40]The judge then dealt with further events in April 2007, and Mr McGill’s activities in May. Mr McGill was given a transfer price of £1 million for the Player by Mr O’Neill, which he communicated to various clubs, including Bolton, together with an indication of the Player’s desired wages. The judge was satisfied that, in taking these steps, Mr McGill was acting as the Player’s agent, and the Player was treating and instructing him in that capacity: see [66]. The judge also described how Mr Sheron got wind of the Player’s planned move from Aston Villa, and of Mr McGill’s role in it. Meanwhile, Mr McGill made good progress with Bolton, and on 28 May 2007 a telephone conversation took place between Mr McGill and Mr McParland during which, as the judge found, Mr McParland expressed “a general willingness by Bolton to take Mr McCann on the kind of basis Mr McGill suggested”: see [74] to [77].

[41]In the next section of the judgment, from [81] to [92], the judge considered, and rejected, the evidence of SEM and the Bolton defendants about their alleged first involvement in relation to the Player’s transfer. Their case rested on two alleged meetings at a restaurant in Liverpool, the first in around mid-May 2007 and the second a week or two later. The judge did not accept that these meetings had taken place. He said at [92]:

“I agree with Mr Budworth that, accepting of course that Mr McGill bears the burden of proof, the Defendants have been unable to fill the “void” that is left about how they came to be involved, if Mr McGill’s account supported by the inferences he wishes the Court to draw, is to be rejected. Their accounts do not stack up and are riddled with inconsistencies and different versions over time. The only sensible conclusion is that SEM, through Mr Sheron, got wind of the fact that Mr McCann was on the move, being represented by Mr McGill, and decided to try and poach him based in particular on the relationship which Mr Sheron had had with him. The “spikes” in the mobile contact between them … support this. Mr Sheron would have been told the transfer fee and the personal terms sought by Mr McCann from (at least) Mr McCann because he knew them. He may also have heard them again from Mr McParland on or after 28 May. At some point thereafter between 28 May and 7 June SEM (through Mr Sheron and then Mr Weston) spoke to Bolton to confirm the essential deal and also that the mechanics of SEM’s involvement would be an agency agreement with Bolton.”

[42]It was then arranged that the Player would sign for Bolton on 8 June 2007. On the evening of 7 June, the Player called Mr McGill to say that Mr McParland had told him to use Mr Sheron, and that Mr Sheron would use a lawyer because he was unlicensed. Mr McGill said he was not prepared to do a deal with Mr Sheron, since he had done all the work and the deal was all but done.

The judge continued, at [93]:

“Later, at 6.51 pm Mr McCann called again to say that Mr Sheron was doing the deal and in answer to Mr McGill’s plea “Don’t do this Gavin we have an agreement, what about that?” he said “I am sorry I feel shit”

. That Mr McCann was working with Mr Sheron at this time is evidenced by the numerous calls and texts between them.”

[43]Two days later, on Saturday 9 June, the Player attended a wedding with another footballer, Mr Lumsdon. Mr Lumsdon gave evidence at the trial, and was found by the judge to be an honest and reliable witness. The judge said at [94]:

“According to Mr Lumsdon Mr McCann asked if he had spoken to Mr McGill and when Mr Lumsdon said he thought Mr McGill was doing his deal he said “I feel shit … I’d better ring him”

. Mr McCann denied this and said Mr Lumsdon was “easily led”. I have no doubt that Mr Lumsdon was speaking the truth.”

[44]These two contemporaneous expressions of contrition by the Player evidence a clear recognition on his part that he was acting shabbily in upsetting his arrangement with Mr McGill and permitting SEM to take over the finalisation of his transfer to Bolton. The judge found, at [99], that the deal between SEM and Bolton was put together very quickly at the last minute. He also found, at [109], that “in truth, SEM did little or nothing for their fee”. The judge considered at length the evidence relating to the back-dating of the agreement between Bolton and SEM, concluding at [122] that it was deliberately intended by Mr Weston to give the appearance that SEM had been appointed by Bolton earlier than it had. Although “not … a particularly sophisticated exercise”, Mr Weston’s intention was to mislead, with the general aim of assisting SEM if Mr McGill took action in relation to what had happened, either by complaining to the FA or by making a claim of some kind.

Issues relating to the alleged oral contract between the Player and Mr McGill

[45]In considering the grounds of appeal and the contentions raised by the respondent’s notice, it is convenient to begin with the issues which relate to the formation, terms and validity of the oral contract which the judge found to have been concluded between the Player and Mr McGill late in the evening of 6 April 2007. I include under this heading all of the contentions of the SEM defendants summarised in sub-paragraphs 21(1) to (4) above.

[46]Without in any way abandoning these contentions, or his written arguments in support of them, Mr Bartley Jones devoted comparatively little time to them in his oral submissions. In my judgment he was wise to adopt this policy, because I consider (in short) that the judge was fully entitled to reach the conclusions which he did on these issues, having heard all the evidence and formed his views about the credibility of the witnesses. (a). Was a contract made at all, and did the Player intend to enter into legal relations with Mr McGill?

[47]The main point upon which the respondents here rely is the fact that, on his own case, Mr McGill attended the meeting at the Preston Marriott Hotel on 6 April 2007 with a draft written agreement, compliant with the FA 2006 Regulations, which he was hoping to persuade the Player to sign, but the Player immediately made it clear that he would not sign any written contract at all, and repeated this refusal twice more while the meeting was in progress: see the judgment at [44] and [47]. Since, under the Regulations, an agent was required to procure a signed written agreement in the standard form before he could begin to act for a player, the correct analysis, it is submitted, is that the Player never intended to enter into any form of agency contract with Mr McGill, and the judge should therefore have concluded that there was no contract at all, or if something resembling a contract was entered into, it lacked legal effect for want of any intention to enter into legal relations.

[48]The problem with this submission, however, is that on the facts found by the judge both the Player and Mr McGill were willing, and intended, to enter into an oral agency contract, in the full knowledge that such a contract did not comply with the Regulations. What the Player refused to do was to enter into a written contract which might render him liable to taxation when an agency fee was paid. Under an oral contract, however, the risk that it might in practice prove unenforceable was taken by Mr McGill, and the threat of a possible tax liability would be met by the expedient of “grossing up” the Player’s wages by an amount which would more than compensate for any additional tax liability. It was explained to us, in this connection, that any such liability would in practice have been reflected in the Player’s PAYE coding for the three tax years in which the commission was payable, and that the additional weekly wages negotiated for the Player should then have left him comfortably better off, on a net basis, than if his wages had remained unchanged. Furthermore, there is no reason to suppose that the making of an oral contract would in itself have jeopardised the Player’s chances of obtaining either a new contract with Aston Villa or a transfer to another club. As I have already pointed out, the practice of “switching” was far from unknown, and in practice the FA raised no objections provided the paperwork was in order when the deal was concluded. Against this background, I can see no good reason to doubt that an oral contract was concluded between the Player and Mr McGill at the hotel, and that they both intended it to be legally binding as between themselves, even though it did not comply with the 2006 FA Regulations. (b). Were the terms of the contract sufficiently certain?

[49]In his skeleton argument, Mr Bartley Jones acknowledges that the terms identified by the judge in his judgment at [56] appear at first blush sufficiently certain to create a binding contract. I agree. He submits, however, that the contract was nevertheless void for uncertainty, because the judge made no finding of any contractual obligation on the part of the Player to enter into a subsequent written representation agreement. Indeed, any such finding would have been contrary to the Player’s repeated evidence that he would not enter into any form of written agency agreement. In this context, Mr Bartley Jones also attacks two further findings made by the judge at [131] and [132]. In the former paragraph, the judge said that the Player “obviously had an implied obligation to co-operate with Mr McGill so as to enable him to earn his fee”. What is the basis for implication of this term, asks Mr Bartley Jones rhetorically, and what was its nature and ambit? In the latter paragraph, the judge referred to clause 4 of the draft FA-compliant written agreement which Mr McGill brought to the meeting on 6 April, providing that the Player was not obliged to use the services of the agent and could represent himself in any negotiations and/or transactions should he so desire. The judge was of the view that this term was not incorporated into the oral agency contract, but again, asks Mr Bartley Jones, why not? It was part of the basic framework insisted upon by the FA, for the protection of players, so why should it have been excluded from the contract which the Player and Mr McGill made for themselves?

[50]In my judgment there is no substance to these objections. As to the implied term of co-operation, this merely reflected the express terms which the parties had agreed, and prevented the Player from unilaterally taking steps designed to frustrate the payment of a fee to Mr McGill if he succeeded in procuring a new contract for the Player on the stipulated terms. Nor did the implied term necessarily oblige the Player to enter into a subsequent written representation agreement, because the contemplated agency agreement might have been entered into between Mr McGill and the club, following a “switch”. Furthermore, even if the Player were obliged to enter into such an agreement, that would not be repugnant in any way to the express terms, because the Player would then have the benefit of his increased wages to meet any tax liability.

[51]As to clause 4 of the standard form FA contract, it seems to me paradoxical to argue that it should be imported into the contract which the parties actually made when they went out of their way to depart from the requirements of the Regulations and make a non-compliant oral contract of their own. Having appointed Mr McGill to act as his exclusive agent until the end of the 2007 transfer window, there is no logical reason why the Player must at the same time have intended to reserve the right to represent himself, or why the failure to incorporate such a term should in some way have invalidated, or rendered uncertain, Mr McGill’s exclusive agency.

[52]I am therefore satisfied that the contract was not void for uncertainty. (c). Was the judge wrong to find that any of the SEM defendants acted as agent for the Player?

[53]The judge made clear, and repeated, findings of fact that, once the Player had dispensed with the services of Mr McGill, SEM (through Mr Sheron) then acted as his agent until the conclusion of the deal, when the agency was “switched” to Bolton: see, in particular, the judgment at [111], [125], [132] and [191]. Thus, for example,

the judge said at [125]:

“I accept that at the early stages once Mr Sheron became involved, he and thus SEM was indeed acting as agent for Mr McCann albeit without a contract. By no later than 7 June however, SEM had “switched” the agency into one for the club. That is what SEM must have intended to happen given that this is what Mr Sheron effectively told Mr McCann would happen. So SEM’s role changed.”

These findings are now attacked by the SEM defendants, on the ground that there was no proper factual basis upon which the judge could make them. In support of this submission, Mr Bartley Jones argues that Mr Sheron’s plan to poach the Player from Mr McGill did not depend upon Mr Sheron replacing Mr McGill as the Player’s agent. On the contrary, the whole point of the plan was that the only agency would be between SEM and Bolton, thereby (it was thought) eliminating any risk of a tax exposure for the Player. If, however, SEM first acted as agent for the Player, albeit under an oral agreement, before later “switching” to Bolton, the risk of a tax liability for the Player would be materially increased. The gist of SEM’s interference lay in obtaining information from the Player about his contract with Mr McGill, which SEM then used to its own advantage. Since the Player never had a compliant written agreement with Mr McGill, this interference did not involve the commission of any tort by SEM or its employees, and Mr McGill had only himself to blame for entering into an inherently risky oral contract with the Player.

[54]The difficulty with this submission, in my judgment, is that it confuses the findings of fact which the judge actually made with other findings, more favourable to the SEM defendants, which he might in principle have made, but did not. The judge had the benefit of seeing and hearing the witnesses, over a nine day trial. He formed an adverse view of the credibility of both the Player and Mr Sheron. On any view, the dismissal of Mr McGill by the Player left a hiatus until the deal was concluded. SEM had regularly acted as the Player’s agent in the past, and Mr Sheron’s friendship with him dated back a decade or more. Moreover, by entering into his oral contract with Mr McGill the Player had shown himself willing to engage an agent outside the scope of the 2006 FA Regulations. In those circumstances, I think it was clearly open to the judge to find that the hiatus was filled by a further relationship of agency between the Player and Mr Sheron, albeit on the understanding the agency would be “switched” to Bolton when the deal was concluded. Moreover, if SEM were not going to act for the Player once he had dismissed Mr McGill, it is much harder to see why the Player should have felt so apologetic about his behaviour on 7 and 9 June 2007. (d). Was the judge wrong to find that any of the SEM defendants induced the Player to breach his contract with Mr McGill?

[55]The answer to this question seems to me to follow on from the questions which I have already considered. SEM (through Mr Sheron) induced the Player to breach his contract with Mr McGill in two ways: first, by inducing him to dismiss Mr McGill as his agent, in breach of the exclusive agency agreement between them which was due to run until 31 August 2007; and, secondly, by inducing the Player to appoint SEM as his agent in Mr McGill’s place, thereby committing a further breach of the same provision in the contract. The judge was in my opinion fully entitled to find that these inducements were made and acted upon by the Player. (e). Was the judge wrong to find that the SEM defendants had knowledge of any relevant contract between the Player and Mr McGill?

[56]Once it is accepted that a valid oral contract was made between the Player and Mr McGill, I can see no possible basis for saying that the judge was not entitled to find that knowledge of the terms of this contract was communicated by the Player to SEM through his old friend, Mr Sheron. The point requires no further elaboration.

Causation and loss

[57]Having cleared these questions out of the way, I can now move on to the issues of causation and loss which lie at the heart of the appeal. The judge held, as a matter of law, that the claim could succeed only if Mr McGill proved that the Player would have signed a written agency agreement with him by the close of the transfer deal. The judge then found, as a matter of fact, that this contention was not made out to the usual civil standard of proof, that is to say on the balance of probabilities. Indeed, the judge expressed his conclusion in fairly strong terms. He said at [142] that he was “quite unable to find that Mr McCann would have signed a representation agreement such that a commission would then have been paid out to him”.

[58]I will begin with the question of law. Mr Douthwaite argues on behalf of Mr McGill that what he lost, as a result of SEM’s unlawful inducement of the Player to breach their oral agreement, was the opportunity of being paid a fee under a written representation agreement which complied with the 2006 FA Regulations. In other words, he submits that the case is one of the kind where the claimant’s loss is properly analysed as the loss of a chance to obtain a pecuniary advantage which depends in some way on the future actions of one or more persons other than the claimant himself. Mr Douthwaite accepts that, if Mr McGill were ever to obtain payment of a fee, the terms of his oral contract with the Player would have to have been subsequently embodied in a compliant written agency agreement made between the two of them. Mr Douthwaite made it clear he was not arguing that the lost opportunity was one that the Player would have entered into a materially different contract, whether with Mr McGill or anybody else. Accordingly, the fee which Mr McGill lost the opportunity of being paid was either a 10% fee paid by Bolton (if Bolton agreed to pay the fee on the Player’s behalf), or a 5% fee paid by the Player himself (if Bolton refused to pay the fee). Either way, Mr McGill’s ultimate entitlement to payment of a fee would depend on the future actions of both the Player and Bolton, and on the final terms of a transfer deal which was still in the course of negotiation.

[59]Mr Douthwaite supported his submissions by reference to two lines of authority. The first is a general principle applicable to the assessment of damages, and is not confined to cases involving the loss of a chance. It was stated as follows by Lord Diplock in Mallett v McMonagle

[1970] AC 166

at 176E-G:

“The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”

The present case, says Mr Douthwaite, is one where the court has to form a view about what would have happened in the future, if the Player had not been induced to breach his contract with Mr McGill. In this counter-factual world, the function of the court is not to decide on the balance of probabilities whether the Player would have entered into a compliant contract with Mr McGill but rather to estimate the chances that this would have happened, and to reflect those chances in the assessment of damages.

[60]The second line of authority concerns cases where the claimant’s loss is itself properly analysed as the loss of a chance. This type of case has been the subject of two important cases in this court, Allied Maples Group Limited v Simmons & Simmons

[1995] 1 WLR 1602

(“Allied Maples”) and, more recently, Wellesley Partners LLP v Withers LLP

[2015] EWCA Civ 1146

[2016] 2 WLR 1351

(“Wellesley”). There was no disagreement between the parties about the principles to be derived from these cases, so it is unnecessary for me to review them in detail. The key principle, for present purposes, is that where the claimant’s loss depends, not on what he would have done, but on the hypothetical acts of a third party, the claimant first needs to prove (to the usual civil standard) that there was a real or substantial, rather than a speculative, chance that the third party would have acted so as to confer the benefit in question, thereby establishing causation; but that the evaluation of the lost chance, if causation is proved, is a matter of quantification of damages in percentage terms. As it happens, Allied Maples and Wellesley were both cases of negligence by solicitors, but the principle is of general application in cases founded upon both tort and contract.

[61]The leading judgment in Allied Maples was delivered by Stuart-Smith LJ, with whose reasoning Hobhouse LJ agreed (see 1618H). At 1611A Stuart-Smith LJ said this:

“In many cases the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, as Mr Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? Although there is not a great deal of authority, and none in the Court of Appeal, relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr Jackson’s submission is wrong and the second alternative is correct.”

[62]After reviewing the existing case law, Stuart-Smith LJ then said at 1614D:

“But, in my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket should be.”

[63]In Wellesley, the principal issue on the defendant solicitors’ appeal, with which we are not concerned, was whether the test for recoverability of damage for economic loss ought to be the contractual test of remoteness (i.e. matters within the reasonable contemplation of the parties), rather than the tortious test of reasonable foreseeability, in cases where concurrent duties in contract and tort were owed to the claimant by the defendants. This court held that the appropriate test in such cases is the contractual one. The relevant part of the case, for present purposes, arose on the claimant’s cross-appeal, and concerned the damages for lost profits awarded by the trial judge (Nugee J) flowing from the defendants’ negligence in drafting an option clause when a substantial new investor was admitted to the claimant partnership, entitling the investor to withdraw half its capital contribution at any time within the first 41 months of the agreement. The investor exercised its option 12 months later. The judge awarded damages for lost profits on the basis that, if the investor had not withdrawn, the claimant would have opened an office in the USA, and then had a 60% chance of obtaining business with a particular bank.

[64]This general approach was upheld by this court (Longmore and Floyd LJJ and Roth J), although there was a comparatively minor aspect of the assessment of damages in relation to which the court differed (by a majority) from Nugee J. The leading judgment was delivered by Floyd LJ. He began his discussion of the loss of a chance issue at [94]. After referring to the well known case of Chaplin v Hicks

[1911] 2 KB 786

, where the claimant was prevented by a breach of contract from participating in the final stages of a competition to obtain engagement as an actress, and to the principle stated by Lord Diplock in Mallett v McMonagle, Floyd LJ continued at [98]:

“98. Questions of assessment of damage, however, have to be distinguished from questions of causation. These issues are discussed at length in the decision of this court in the Allied Maples case [1995] 1 WLR 1602. As the court there explained, in the context of causation, some hypothetical questions (“what would have happened if …”) do fall to be decided on the balance of probabilities. Thus (see Stuart-Smith LJ, at p 1610D-H) where the breach of a duty consists of an omission, for example to provide safety equipment, and the question is what the claimant himself would have done had the breach of duty not occurred – a question of causation – the claimant has to prove the matter on the balance of probabilities. He does not get a percentage award if he falls just short of the threshold, and he does not suffer a discount if he passes it. 99. Stuart-Smith LJ went on to explain that in many cases the causation of the claimant’s loss may depend on the hypothetical action of a third party, either in addition to the claimant himself or independently of him. In those cases the court does not demand that the claimant establish his case of causation on the balance of probabilities: see the Allied Maples case, at p 1611A-C. All the claimant has to show in such cases is that the chance is a real or substantial one. Having done so he must still show, on the balance of probabilities that the defendant’s act has caused the loss of the chance (see to this effect per Lord Nicholls of Birkenhead in Gregg v Scott [2005] 2 AC 176, para 17). Once the claimant has shown on the balance of probabilities that he has lost the relevant chance, the valuation of the chance is a question for the quantification or assessment of damages. 100. I would have thought that, applying those principles to the present case, it would be plain that, whilst [the claimant] would need to show on the balance of probabilities that, but for the negligence complained of, they would have opened a US office (a question of causation dependent on what the claimant would have done in the absence of a breach of duty), the actual loss which they claimed to have been caused by the defendant was dependent on the hypothetical actions of a third party, namely Nomura. Accordingly, in line with well established principle, the chances of Nomura deciding to award the mandates to [the claimant] would have to be reflected in the award of damages.”

[65]Floyd LJ then discussed various authorities which were said by the claimant to lead to a different conclusion, but concluded at [110] that:

“It would be wrong in principle to treat the conclusion on causation as if it meant that the chances of obtaining some part of the mandate [from Nomura] were 100%. The judge was correct to reflect his view of the chances of [the claimant] obtaining the mandate in his quantification of damages.”

[66]If these principles are applied to the present case, it seems clear to me that the loss suffered by Mr McGill as a result of the breach of his oral contract with the Player induced by SEM and Mr Sheron is correctly analysed as the loss of a chance. His loss did not depend on something which he himself says he would have done in the future, had the contract not been breached, but depended rather on the possibility that the Player would have entered into a compliant written agency agreement with him when the deal with Bolton was finalised. The case is thus one where the claimant’s loss depended on the hypothetical actions of a third party, namely the Player, and is governed by the principles stated by Stuart-Smith LJ in Allied Maples at 1614D and by Floyd LJ in Wellesley at [99]. Furthermore, it seems equally clear to me that the threshold test of causation is comfortably satisfied. Against the factual background which I have outlined, there must have been a real or substantial chance that, but for the interference by SEM and Mr Sheron, the Player would have entered into a written agreement with Mr McGill. After all, that is what the oral agreement clearly contemplated, because without a compliant written agreement, Mr McGill’s rights to payment of a 5% or 10% fee could never have materialised. Moreover, the Player was in principle bound by the implied term to co-operate with Mr McGill in bringing about such a situation.

[67]For these reasons, I am satisfied that the judge erred in principle in holding that Mr McGill’s case required proof that the Player would have signed a written agreement by the end of the transfer process. The question remains, however, whether it was open to Mr McGill to advance his case on what I would regard as the correct basis. This question requires consideration both of Mr McGill’s pleaded case and of the events which led the judge to state, at [141], that the case had “not been put on the basis of loss of a chance”.

[68]I will begin with the pleading point. When the trial started, Mr McGill’s basic case on loss and damage in relation to all his causes of action was pleaded in a single compendious paragraph of the re-amended particulars of claim, as follows:

“133. By reason of the matters aforesaid the Claimant has suffered loss and damage in the loss of the opportunity to be paid the agent’s fee on the transfer. He contends that but for the unlawful acts complained of he would have received a fee of up to £390,000 being 10% of the value of the guaranteed basic earnings under the playing contract with Bolton. No credit should be given against that figure for sums received from the Player in settlement of [the 2007 Action] because as against the sum being claimed from him and his liability for the Claimant’s costs if he lost, which were at the time of the settlement approximately £155,000, the Player paid and the Claimant accepted a net payment to him of £50,000 and it is not open to the Defendants to assume the such sum was only referable to the sum claimed and not the costs liability regardless of how any settlement terms were actually worded. But for the unlawful acts complained of the Claimant would have continued to represent the Player and he also lost the opportunity to earn further sums from his representation of him.”

[69]It can thus be seen that the very first way in which Mr McGill pleaded his loss was as “the loss of the opportunity to be paid the agent’s fee on the transfer”. That is a clear allegation of loss of a chance. It is perhaps unfortunate that this clarity was then blurred by the second sentence of paragraph 133, which refers to the fee which Mr McGill says “he would have received”, which may suggest a test on the balance of probabilities. Nor are any details provided of the precise nature of the alleged lost opportunity, or how it could in practice have arisen. But it was open to the defendants to make requests for further information if they were in any real doubt about these matters, and the second sentence could anyway be read as meaning no more than that the lost opportunity should be valued at more than 50%.

[70]A further amendment to paragraph 133 was then made, by permission of the judge, after the evidence had closed but before oral closing submissions. This further amendment inserted the following passage between the first and second sentences of the paragraph:

“But for the acts complained of the Claimant would have received a commission for brokering the transfer deal. He would have received it by reference to his contract with Mr McCann under which he had been appointed as his exclusive agent. That contract would have been reduced to writing at the time that the deal was completed, for regulatory purposes, as part of the collation of the various documents to be lodged with the Football Association. Alternatively, if (which is denied) the agreement with Mr McCann reached on 6 April was not already legally binding it would have become so when it was reduced to writing which would have happened but for the fact that the Claimant was ousted. But for the acts complained of he would have participated in the completion of the formal documents surrounding the transfer and would have been declared to the Football Association as the agent who had acted in the transfer.”

[71]This new passage was again framed in terms of what “would have happened”, but the important point for present purposes is that it did not replace the first sentence of paragraph 133, which remained intact. It seems possible, however, that the judge may have lost sight of this point, because in the judgment at [11] he quotes the new passage alone, without the preceding sentence, and in [12] he said that, whether a binding oral agreement was made or not, it was part of Mr McGill’s case “that a written contract (compliant with FA Regulations) would have come into being at least by the time Mr McCann was signed up”. As a matter of pleading, however, it seems clear to me that the loss of a chance analysis of Mr McGill’s loss remained in contention, and indeed remained the primary way in which it was formulated.

[72]How, then, did the judge come to form the view that Mr McGill’s case was no longer put on the basis of loss of a chance? We have not been shown any passage from the transcript in which that way of putting the case was formally abandoned. On the other hand, that is not how the case was put in Mr Budworth’s skeleton argument for trial, or in his written closing submissions; and the judge was not referred to any of the cases on loss of a chance, including Allied Maples. (Wellesley had not by then been decided). Under the heading “Loss” in his skeleton argument, Mr Budworth merely said that the claimant was “entitled to be put into the position he would be in but for the commission of the torts. He would have done the deal and been paid as asserted at para 133ff of the amended Particulars of Claim” (paragraph 86). Mr Budworth’s written closing submissions were no more informative on this issue. Unsurprisingly, counsel for the defendants also seem to have steered well clear of any suggestion that the claim might properly be analysed on the basis of loss of a chance. The point made by counsel then appearing for the SEM defendants, Ms Lisa Walmisley, in her written closing submissions, was merely that the loss and damage claimed in paragraph 133 of the particulars of claim was precisely the same as the loss for which Mr McGill had sued the Player in the 2007 Action, thereby engaging the Jameson principle.

[73]As far as I can tell, there was only one reference to loss of a chance in the oral closing submissions on 5 June 2007, when Ms Walmisley said in relation to the proposed further amendment of paragraph 133 of the particulars of claim (at page 7 of the transcript):

“It is a new case, effectively a loss of chance. That is something that does need to be dealt with, if there is going to be an application to amend and, at the moment, there is not.”

The judge then replied:

“No. I have that point.”

This exchange is rather puzzling, because it was not the proposed further amendments which introduced the concept of loss of a chance. It had been there from the beginning, in the first sentence of paragraph 133. But everybody seems to have lost sight of this point, including Mr McGill’s own counsel.

[74]In all the circumstances, although I find it easy to understand how the judge formed the view that Mr McGill’s case was not put on the basis of loss of a chance, I consider that this analysis was throughout open to Mr McGill on his pleaded case, and was never expressly disclaimed or abandoned. Nor do I think that there is any injustice to the SEM defendants in permitting the argument to be run on the present appeal, as the argument is essentially one of law arising from Mr McGill’s pleaded case. It cannot plausibly be suggested that the defendants would have run their cases differently had a loss of a chance analysis been at the forefront of Mr McGill’s claim at trial, rather than being left in the background. Mr Bartley Jones now objects, it is true, that the loss of a chance approach was never put to the Player in cross-examination, so it would be unfair to allow the argument to be run now. In my judgment, however, there are two answers to this objection. The first answer is that it would have been pointless to put the claimant’s case to the Player on this basis, given his repeated “mantra” that he would never have signed a written agency agreement, and his denial that he entered into any contract of any kind with Mr McGill. Secondly, if the objection were a good one, it would apply equally to the finding which the judge made on the balance of probabilities, in favour of the SEM defendants, that the Player would never have entered into a written agreement with the claimant, because this too was never put to the Player in cross-examination.

[75]My ultimate conclusion on this part of the case, therefore, is that Mr McGill’s loss is correctly analysed in terms of loss of a chance, and (subject to the Jameson argument, which I will consider in due course) it is open to Mr McGill to argue the present appeal on that basis.

[76]The next issue is whether the judge was wrong to find that the Player would not have entered into a written contract with Mr McGill. This finding was fatal to Mr McGill’s claim, on what I have held to be the judge’s mistaken view about the correct approach to causation and loss. If, however, the loss of a chance approach is correct, and the judge’s finding stands, the effect is that the chance of the Player signing a written contract with Mr McGill must be evaluated as no higher than 50%, because any higher percentage would be inconsistent with the express finding which the judge made on the balance of probabilities.

[77]Mr Douthwaite submits the overwhelming probability is that the Player would have signed a written agreement with Mr McGill, and the judge’s finding to the contrary was clearly wrong. He relies on a number of points in support of this submission:(a) SEM and Bolton eventually signed a written agency agreement which enabled SEM to be paid an agency fee of £300,000 in connection with the transfer of the Player to Bolton. There is no reason to doubt that Bolton would have been willing to pay a similar fee to Mr McGill, had he not been ousted.

(b) The evidence of Mr Marland, and others, was that it was not at all uncommon for representation agreements to be reduced to writing only at the time when all the other transfer paperwork was completed.

(c) The Player had always used an agent in the past, and agreed in cross-examination that he had never represented himself at any time in his career.

(d) Elsewhere in cross-examination, the Player had said: “Listen, I play football, and if you ever sign – when you sign a contract, you trust the agents and that to do the paperwork and this and that.”

(e) The Player was in any event obliged to co-operate with Mr McGill so as to enable him to earn his fee, pursuant to the implied term found by the judge at [131].

(f) When the Player dismissed Mr McGill, he did not elect to act for himself, but chose instead to use a new agent, namely SEM through Mr Sheron. I have already decided that the judge was entitled to make this finding.

(g) The Player’s new wages of £25,000 per week, for three years, included an element of “grossing up” sufficient to discharge any tax liability associated with payment of a fee to Mr McGill under a written agreement, and the Player’s oral evidence was that he “wasn’t overly bothered” about the increase from his previous wages. He would therefore have had no problem signing a written contract with the agent whom he had expressly instructed to find a deal for him on a binding verbal contract.

[78]On behalf of the SEM defendants, Mr Bartley Jones submits that the judge was fully entitled to make the finding which he did. He relies above all on the thrice-repeated refusal of the Player to sign a written agreement during his meeting with Mr McGill on 6 April 2007, and his determination not to find himself again in a situation where he would be liable for tax in respect of an agency fee. It must have occurred to the Player, submits Mr Bartley Jones, that his own self-interest would be best served if, having engaged Mr McGill to act for him under a non-compliant oral contract, and having used his services to obtain a transfer to Bolton at enhanced wages, he then refused to sign a written agency agreement with Mr McGill. In this way, he would have kept the benefit of his enhanced wages, without (as he would have thought) suffering the detriment for which they were supposed to compensate. Such behaviour might seem disreputable, but as he was capable of letting Mr McGill down by dismissing him in breach of contract, he might well have proved equally unscrupulous had the contract run its course. As the judge said, at [140]:

“Having heard and seen Mr McCann I do not believe that it would have been beyond him to refuse to sign an agreement.”

[79]Although there is considerable force, to my mind, in at least some of the points made by Mr Douthwaite, I feel little doubt that the judge was entitled to conclude as he did. By entering into a non-compliant oral agreement with the Player, Mr McGill was always running a high risk that he might be left stranded if the Player stood by his repeated refusal to sign a written agreement. I am therefore satisfied that Mr McGill’s challenge to the judge’s finding on this question must fail.

The Jameson argument

[80]I now turn to the Jameson argument. If well-founded, it would have provided all of the defendants with a complete answer to Mr McGill’s claims in the present action. Having dismissed each of Mr McGill’s claims on other grounds, the judge did not need to deal with the argument, but he considered it briefly at [202] to [203], indicating that had he needed to decide the point, he would have rejected it.

The judge’s reasoning was as follows:

“202. All Defendants have taken the point that because Mr McGill sued Mr McCann and recovered at least something, he is now debarred in any event from [bringing] this separate claim against them. They rely on the case of Jameson v CEGB [2000] 1 AC 455. That case is authority for the proposition that in the case of joint or concurrent tortfeasors, where there is a settlement in full and final satisfaction of the Claimant’s claim against one of them (irrespective of any discount for litigation risk), this is a bar to a claim against any other such tortfeasor where it is for the same damage. But the question will always arise whether the settlement has truly been in full and final settlement of that claim for damages. See Clerk & Lindsell at paragraph 4-18. 203. Given my findings above, it is not strictly necessary to decide the point. But if I had to, I would not have found that the earlier settlement with Mr McCann was a bar to this action for the following brief reasons: (1) The claim against Mr McCann was for breach of contract not in tort; (2) While it might be said that he could have been found liable in tort I cannot see what it would be given my findings above. He could not have conspired to induce himself to break his contract, nor could he have been a conspirator or tortfeasor on any other basis; (3) There has been no detailed consideration of the actual settlement agreement in the action against Mr McCann at all. But on the face of it [it] seems very unlikely that £50,000 was actually taken as a measure of Mr McGill’s real loss which, if it was anything, was of the order of £300,000, especially in the light of Mr McGill’s explanation of the settlement at paragraph 127 above.”

[82]As the judge’s third reason indicates, this passage needs to be read together with paragraph [127] of the judgment, where

the judge said in relation to the settlement of the 2007 Action:

“As to why [Mr McGill] settled [the claim] against him for such a low sum, given his legal costs, Mr McGill said that if the trial went ahead he would be inconveniencing 16 people who would have to attend as witnesses plus incurring legal costs of £15,000 per day. While he viewed Mr McCann as having been tempted to break the contract he saw the real perpetrators as SEM and Bolton. He agreed to take £50,000 to leave Mr McCann alone.”

[83]The basic issue in Jameson was whether the liability of concurrent tortfeasors for the same harm is discharged by a settlement which has been entered into with one of them. The factual context in which the question arose is summarised in the headnote at

[2000] 1 AC 455

“A few days before his death in 1988 from malignant mesothelioma J. agreed to accept £80,000 from his former employer in “full and final settlement and satisfaction of all the causes of action in respect of which the plaintiff claimed in the statement of claim” which were for negligence and/or breach of statutory duty in causing the disease by exposing him to asbestos at various premises at which he had been employed, including those of the defendant, for which his employer had undertaken work. By the time payment of the settlement sum was made by the employer J. had died. The £80,000 was significantly less than the full liability value of his claim. The fatal disease might have been caused by the negligence or breach of statutory duty of either or both of the employer and the defendant. The settlement of the action divested J. of his cause of action against his former employer and barred his widow from making a claim against it pursuant to section 1(1) of the Fatal Accidents Act 1976. The plaintiffs, J.’s executors, issued proceedings against the defendant on behalf of J.’s widow for loss of dependency in respect of the same exposure to asbestos as for part of the claim in the settled action against the employer alleging similar, but not identical, negligence and breach of statutory duty.”

The defendant then took the point that it could not be liable because of the plaintiff’s settlement of his claim with the employer. This contention was upheld, by a majority, in the House of Lords.

[84]The leading speech for the majority was delivered by Lord Hope of Craighead, who analysed the position as follows in a passage beginning at 472F:

“So the first question which arises on the facts of this case is whether satisfaction for this purpose is achieved where the plaintiff agrees to accept a sum from one of the alleged current tortfeasors which is expressed to be in full and final settlement of his claim against that tortfeasor, if that sum is less than the amount which a judge would have held to be the amount of the damages which were due to him if the case had gone to trial and the defendant had been found liable. In the Court of Appeal [1998] QB 323, 341-342 Auld LJ, in a careful and impressive judgment, said that he could “see no basis in law or in common sense why an agreement expressed to be “in full and final settlement and satisfaction” between a claimant and one tortfeasor should be regarded as full satisfaction in respect of any claims that he may have against a concurrent tortfeasor who was not a party to [the settlement].”

This was because the causes of action against each of the concurrent tortfeasors are separate, not single and indivisible as is the case with joint tortfeasors. He said that satisfaction, as between concurrent tortfeasors, must depend not upon an agreement with one of them but on whether or not the claim against the second tortfeasor has in fact been satisfied. So the judge in the second action was not bound to equate full satisfaction with a figure acceptable to both parties representing their assessment of the risks of litigation. I follow that reasoning as far as it goes but I do not think, with great respect, that it goes quite far enough. The causes of action are indeed separate. And it is clear that an agreement reached between the plaintiff and one concurrent tortfeasor cannot extinguish the plaintiff’s claim against the other concurrent tortfeasor if his claim for damages has still not been satisfied. The critical question, as Auld LJ was right to point out, at p. 342B, is whether the claim has in fact been satisfied. I think that the answer to it will be found by examining the terms of the agreement and comparing it with what has been claimed. The significance of the agreement is to be found in the effect which the parties intended to give to it. The fact that it has been entered into by way of a compromise in order to conclude a settlement forms part of the background. But the extent of the element of compromise will vary from case to case. The scope for litigation may have been reduced by agreement, for example on the question of liability. There may be little room for dispute as to the amount which a judge would award as damages. So one cannot assume that the figure which the parties are willing to accept is simply their assessment of the risks of litigation. The essential point is that the meaning which is to be given to the agreement will determine its effect.”

[85]After examining earlier case law, Lord Hope then stated his conclusions at 476A-F:

“I think that these cases demonstrate the limits of the inquiry which the judge may undertake in the event of a subsequent action being raised against another alleged concurrent tortfeasor. He may examine the statement of claim in the first action and the terms of the settlement in order to identify the subject matter of the claim and the extent to which the causes of action which were comprised in it have been included within the settlement. The purpose of doing so will be to see that all the plaintiff’s claims were included in the settlement and that nothing was excluded from it which would properly form the basis for a further claim for damages against the other tortfeasors. The intention of the parties is to be found in the words of the settlement. The question is one as to the objective meaning of the words used by them in the context of what has been claimed. What the judge may not do is allow the plaintiff to open up the question whether the amount which he has agreed to accept from the first concurrent tortfeasor under the settlement represents full value for what has been claimed. That kind of inquiry, if it were to be permitted, could lead to endless litigation as one concurrent tortfeasor after another was sued on the basis that the sums received by the plaintiff in his settlements with those previously sued were open to review by a judge in order to see whether or not the plaintiff had yet received full satisfaction for his loss … I do not think that this can be regarded as acceptable. The principle of finality requires that there must be an end to litigation. The question therefore is … not whether the plaintiff has received the full value of his claim but whether the sum which he has received in settlement of it was intended to be in full satisfaction of the tort. In this case the words used cannot be construed as meaning that the sum which the deceased agreed to accept was in partial satisfaction only of his claim of damages. It was expressly accepted in full and final settlement and satisfaction of all his causes of action in the statement of claim. I would hold that the terms of his settlement with Babcock extinguished his claim of damages against the other tortfeasors.”

[86]This reasoning attracted a good deal of criticism by textbook writers and courts in other common law jurisdictions. The House of Lords had an opportunity to return to the subject in Heaton, which unfortunately does not seem to have been cited to the judge in the present case (although it is referred to in the paragraph of Clerk & Lindsell on Torts, 20th edition, which he mentions). The issue in Heaton was expressed by Lord Bingham of Cornhill, at [1], as follows:

“… if A, having sued B for damages for breach of contract, enters into a settlement with B expressed to be in full and final settlement of all its claims against B, is A thereafter precluded from pursuing against C a claim for damages for breach of another contract to the extent that this claim is for damages which formed part of A’s claim against B? Expressed in another way, the issue is whether the majority decision of the House in [Jameson], properly understood, laid down any rule of law and, if so, whether that rule applies to successive contract-breakers as well as concurrent tortfeasors.”

[87]Lord Bingham went on to illustrate the issues in the appeal by some schematic examples, and at [5] he pointed out “an obvious difference” between actions which culminate in a judgment and those which culminate in a compromise, saying:

“… whereas, save in an exceptional case … a judgment will conclusively decide the full measure of damage for which B is liable to A, a sum agreed to be paid under a compromise may or may not represent the full measure of B’s liability to A. Where a sum is agreed which makes a discount for the risk of failure or for a possible finding of contributory negligence or for any other hazard of litigation, the compromise sum may nevertheless be regarded as the full measure of B’s liability. But A may agree to settle with B for £x not because either party regards that sum as the full measure of A’s loss but for many other reasons: it may be known that B is uninsured and £x represents the limit of his ability to pay; or A may wish to pocket a small sum in order to finance litigation against other parties; or it may be that A is old and ill and prefers to accept a small sum now rather than a larger sum years later; or it may be that there is a contractual or other limitation on B’s liability to A. While it is just that A should be precluded from recovering substantial damages against C in a case where he has accepted a sum representing the full measure of his estimated loss, it is unjust that A should be so precluded where he has not.”

[88]Lord Bingham then analysed the majority decision of the House in Jameson, and set out at [8] the steps by which that decision had been reached. The fifth of those steps, and Lord Bingham’s comment on it, read as follows:

“(5) A sum accepted in settlement of such a claim may also fix the full measure of a claimant’s loss (pp 473E, 474E-F): whether it does so or not depends on the proper construction of the compromise agreement in its context (pp 473B, 476E, 474H). … The fifth proposition may perhaps have been stated a little too absolutely in Jameson, but as expressed above I do not think it can be challenged. There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow’s Fatal Accidents Act claim against C.”

Lord Bingham then continued:

“9. In considering whether a sum accepted under a compromise agreement should be taken to fix the full measure of A’s loss, so as to preclude action against C in tort in respect of the same damage, and so as to restrict any action against C in contract in respect of the same damage to a claim for nominal damages, the terms of the settlement agreement between A and B must be the primary focus of attention, and the agreement must be construed in its appropriate factual context. In construing it various significant points must in my opinion be borne clearly in mind: (1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor and the release of one contract-breaker does not have the effect in law of releasing a successive contract-breaker. (2) An agreement made between A and B will not affect A’s rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of the Contracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party. (3) The use of clear and comprehensive language to preclude the pursuit of claims and cross-claims as between A and B has little bearing on the question whether the agreement represents the full measure of A’s loss. The more inadequate the compensation agreed to be paid by B, the greater the need for B to protect himself against any possibility of further action by A to obtain a full measure of redress. (4) While an express reservation by A of his right to sue C will fortify the inference that A is not treating the sum recovered from B as representing the full measure of his loss, the absence of such a reservation is of lesser and perhaps of no significance, since there is no need for A to reserve a right to do that which A is in the ordinary way fully entitled to do without any such reservation. (5) If B, on compromising A’s claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise.”

[90]There is also much in the speeches of Lord Mackay of Clashfern and Lord Rodger of Earlsferry which repays careful reading, but I will not prolong this judgment by quoting from them.

[91]In the light of Heaton, which (as I have noted) was not cited to the judge, it is clear that his first two reasons for saying that the Jameson principle could not apply to the present case must be mistaken. The doctrine is not confined to concurrent tortfeasors, and the true question which has to be answered is whether, by settling the earlier action, the claimant has fixed the full measure of his loss, so that he has no remaining loss to recover from anybody else. The answer to this question depends on the proper construction of the compromise agreement, placed in its factual and legal context.

[92]In his proposed amended particulars of claim in the 2007 Action, Mr McGill alleged that he and the Player had entered into an oral agreement on 6 April 2007, on terms similar to those subsequently found by the judge in the present action. He said the Player had acted in repudiatory breach of the agreement by dispensing with his services on 7 June 2007, and instructing Mr Sheron to act as his agent instead. Mr McGill claimed to be entitled to a fee under the agreement, on the basis that his activities had been the effective cause of the Player’s entering into his contract with Bolton. Alternatively, Mr McGill claimed damages for the lost opportunity to seek payment from Bolton of between 5 and 10% of the Player’s guaranteed income under the Bolton contract, or alternatively payment of 5% of that amount from the Player. In the further alternative, Mr McGill claimed a reasonable sum for his services on a quantum meruit basis. The Player’s proposed amended defence denied that any oral contract had been concluded between him and Mr McGill, denied any intention to create legal relations, and said that any alleged agreement was void for uncertainty. It was further alleged that Mr McGill had sought to persuade the Player to engage him as his agent by offering to pay him a substantial sum of money, euphemistically described as “chocolates”, if a deal were concluded. The quantum meruit claim was denied, on the basis that the Player had never requested any services of Mr McGill in his capacity as a licensed agent, nor had any such services been provided.

[93]In fairness to Mr McGill, I should record that the “chocolates” allegation was found by the judge in the present action to be without foundation. He said at [63] he was “quite sure that this incident … never happened”.

[94]I have already referred, at [8] above, to the Tomlin order by which the 2007 Action was settled on the first day of the trial. The terms set out in the schedule to the order provided for the Player to pay Mr McGill’s solicitors the sum of £50,000 within 56 days, and for the parties to keep the existence and terms of their agreement confidential and private, subject to limited exceptions. Paragraph 3 of the schedule then said:

“The terms of this Schedule are in full and final settlement of all claims arising out of those matters set out in the statements of case in [the 2007 Action] including the draft amended Particulars of Claim and draft amended Defence. This includes any outstanding orders as to costs in the above-mentioned proceedings.”

[95]In these circumstances, Mr Bartley Jones submits that the compromise of the 2007 Action did objectively fix the full measure of Mr McGill’s loss. Mr McGill had been seeking to recover from the Player all his contractual losses, and all sums due to him on a quantum meruit. Those are in substance the very same losses that he seeks to recover from the SEM defendants in the present action, by way of the tort of inducing breach of contract and the corresponding unlawful means conspiracy. The fact that Mr McGill was prepared to settle for the relatively low amount of £50,000 is readily explicable, submits Mr Bartley Jones, by the weakness of Mr McGill’s case and the fact that he had to rely on a non-FA compliant oral contract.

[96]Mr Douthwaite did not deal with the Jameson argument in his written submissions, but in oral argument he submitted that Mr McGill’s present claims were not barred. He said that the loss claimed in the present action differed in some points of detail from that claimed in the 2007 Action, and (more importantly) the inclusion of Mr McGill’s very substantial costs in the earlier compromise made it impossible to know what value should objectively be assigned to the settlement of the claim itself. Mr Douthwaite also pointed out that there was no mention in the pleadings in the 2007 Action of any claim which Mr McGill might have against SEM or any other third party, nor had the Player made any attempt to protect himself from becoming involved in any such claims.

[97]I have not found this an easy question, but my conclusion is that it would be unfair and unjust to Mr McGill to hold that his settlement with the player in 2009 precluded him from pursuing the present action against the SEM defendants. The present case is of a very different character from that of concurrent tortfeasors considered by the House of Lords in Jameson, and that of successive contract-breakers considered in Heaton. Here, there is only one relevant contract, namely the oral agreement made between Mr McGill and the Player. In principle, Mr McGill had two quite separate types of claim arising from the breach of that contract: first, a claim for breach of contract against the Player; and, secondly, claims for inducing the breach of contract and conspiracy against the SEM defendants. In a situation of that nature, it seems to me natural for the claimant to begin by seeking to recover what he can from the other party to the contract, and only then, to the extent that his claim remains unsatisfied, to seek to recover the remainder of his loss from the parties who are alleged to have procured (or conspired to procure) the breach of contract. All these claims may, of course, be combined in a single action, and the more prudent course will often be to pursue them simultaneously. But it would in my view be unfortunate if, by pursuing them sequentially, the claimant were to expose himself to the risk of finding his second claim barred, unless it is absolutely clear that, by reaching a settlement with the contract breaker, he has left himself with no remaining loss to recover.

[98]In the circumstances of the present case, it would in my judgment be wrong to reach such a conclusion, despite the substantial identity of the loss claimed in the two actions, and despite the comprehensive terms of the wording of the Tomlin order. The claims in tort against the SEM defendants are of such a different character from the claim in contract against the Player that clear language would in my view have been needed if, by settling with the Player, Mr McGill were to be taken to have also satisfied his claim against the SEM defendants. No such language is to be found, and the mere fact that the terms of settlement between Mr McGill and the Player were comprehensive does not assist, as Lord Bingham explained in Heaton at [9(3)]. Similarly, there was no need for Mr McGill expressly to reserve any right to pursue the SEM defendants, because in the normal way he was fully entitled to do so without any such reservation: ibid. at [9(4)].

[99]This way of looking at the matter is fortified, to my mind, by the absence of any evidence that the SEM defendants were involved in any way in the 2007 Action, except perhaps as witnesses. There is no suggestion that they played any part in the negotiations between Mr McGill and the Player, or that they made any contribution to the settlement sum.

[100]It is harder to know what weight (if any) the court should attach to the judge’s finding at [127], that Mr McGill saw the real perpetrators as SEM and Bolton, and agreed to take £50,000 to leave the Player alone. On the one hand, subjective considerations of this nature would not sit easily with the essentially objective nature of the question posed by Jameson and Heaton. On the other hand, the motivation of a claimant in agreeing to accept a sum by way of compromise representing less than the full measure of his estimated loss was clearly regarded as relevant by Lord Bingham in Heaton at [5], quoted above. In my judgment, fairness requires that the court should be able to take such motivation into account as part of the factual matrix relevant to the issue whether the claimant has indeed accepted a sum representing the full measure of his estimated loss. The tension between a purely objective approach to this question, and subjective considerations of the kind mentioned by Lord Bingham, may perhaps be rationalised by saying that the court cannot sensibly form a view on the question whether the sum accepted in compromise represented the full measure of the claimant’s loss without knowing what it was that the claimant wished to achieve by entering into the compromise.

[101]In any event, whether or not it is legitimate to take Mr McGill’s subjective intentions into account, I am satisfied that, on balance, the Jameson argument fails. In cases of the present type, it would be most unattractive to have to conclude that a settlement reached between the innocent claimant and the contract breaker precludes a subsequent action in tort against the primary wrongdoers who induced the breach of contract in the first place.

Unlawful means conspiracy

[102]I do not need to deal separately with this ground of appeal, because it stands or falls with the main grounds of appeal on loss and causation. Neither side addressed any separate submissions to us about it.

Unjust enrichment

[103]Mr McGill’s unjust enrichment claim was made against SEM alone. It is pleaded in paragraphs 128 to 131 of the re-amended particulars of claim. Paragraph 128 alleges that SEM was unjustly enriched by its receipt of the commission relating to the transfer paid by Bolton, and of such other income as it received from the Player thereafter, having “unlawfully encouraged him away” from Mr McGill. Paragraph 129 makes a further allegation of unjust enrichment by reason of misrepresentations made by SEM to the Player on 7 June 2007, to the effect that SEM had already been appointed by Bolton and was being paid by Bolton, whereas no agreement had yet been signed by SEM and Bolton. Paragraph 130 then says:

“The restitutionary claim arising from SEM’s unjust enrichment is a matter of remedy and is parasitic on SEM’s participation in the conspiracies …, causing loss by unlawful means … and misuse of confidential information … In the premises SEM obtained a benefit as a result of its torts and the Claimant seeks to preserve his election of restitutionary remedy whereby SEM is required to disgorge to him the benefit it obtained by reason of its tortious acts.”

[104]In my judgment it is clear from paragraph 130 that Mr McGill was not pursuing an independent cause of action in restitution against SEM, but was merely reserving the right to claim damages on a restitutionary, or disgorgement, basis if his tort or misrepresentation claims succeeded. In the event, no claim for restitutionary damages was pursued by Mr McGill at trial, and by the time of closing submissions the only sum claimed as damages was the fee of £300,000 paid by Bolton to SEM. It is true that paragraph 132 of the particulars of claim purports to include “unjust enrichment” as one of the causes of action pursued by Mr McGill against SEM; but this unparticularised summary cannot in my view prevail against the clear and unambiguous terms of paragraph 130. It follows that the judge was correct to proceed on the basis that there was no independent claim in unjust enrichment upon which he was required to adjudicate.

[105]That conclusion is sufficient to dispose of the present ground of appeal. I would only add that, even if an independent claim in unjust enrichment had been pleaded and pursued against SEM, I have great difficulty in understanding how the requirement that SEM be enriched at the expense of Mr McGill could have been satisfied. The fee which SEM received was paid by Bolton, not by Mr McGill, or on his behalf, or for his benefit. SEM was therefore enriched at the expense of Bolton, not Mr McGill.

The way forward

[106]Taking stock of the position, I have now decided that the judge erred in his approach to the issues of loss and causation, and that Mr McGill is entitled to an award of damages on the basis of loss of the opportunity to earn a fee under a written agency agreement when the Player’s transfer to Bolton was completed. I have also held that the judge’s finding that the Player would have refused to enter into a written agreement with Mr McGill should not be disturbed. The other grounds of appeal will be dismissed, apart from the ground relating to unlawful means conspiracy which now succeeds, and has the effect of making all the SEM defendants liable for Mr McGill’s loss. How, then, should matters now proceed? Although Mr Douthwaite floated with us the possibility that we might ourselves feel able to assess the percentage likelihood that the Player would have entered into a written agreement with Mr McGill, I am of the firm opinion that we lack the necessary equipment to perform that task. Only the trial judge, who heard all the evidence over eight days, and had all the documentation in the case before him, is in a position to do so. The case must therefore be remitted to him, so that he can assess the value of the opportunity which Mr McGill has lost. In making that assessment, he will of course be bound by his previous finding on the balance of probabilities that the Player would not have entered into a written agreement with Mr McGill, so the lost chance that such an agreement might have materialised cannot exceed 50%.

[107]For my part, I would not wish to be more prescriptive than this. The case was not in practice run before the judge on the basis of loss of a chance, although that basis remained open on the pleadings. I think it should therefore be left to the judge to decide whether, and if so to what extent, he wishes to receive further submissions and/or evidence before reaching a decision on the question remitted to him. He may well feel that he already has sufficient material to answer the question, or that no more is required than an opportunity for the parties to make further written and/or oral submissions; but he will be in far better a position than we are to decide matters of that sort, and he should have a free hand to determine the procedure which will best enable him to perform his task within a reasonable time frame and at proportionate cost to the parties.

[108]If my Lord agrees, therefore, I would allow Mr McGill’s appeal on the basis, and upon the terms, which I have indicated.

[109]I agree.