Tokyo Industries (Live) Limited v Orbit Tickets Limited [2025] EWHC 2074 (Ch)

[2025] EWHC 2074 (Ch)Case No BL-2023-NCL-000014IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN NEWCASTLEBUSINESS LIST (ChD)The Moot Hall, Castle Garth,Newcastle upon TyneNE1 1RQDate 07 August 2025
Before
HH JUDGE DAVIS-WHITE KC(SITTING AS A JUDGE OF THE CHANCERY DIVISION)
Between
TOKYO INDUSTRIES (LIVE) LIMITEDClaimantORBIT TICKETS LIMITEDDefendant
Mr Richard Stubbs (instructed by Ward Hadaway LLP) for ClaimantMr Steven McGarry (instructed by Aticus Law Ltd (up to and including 4 April 2025, thereafter by way of Direct Access)) for DefendantHearing Hearing dates: 31 March (reading), 1-4 April, 10 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 07 Augus 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HH JUDGE DAVIS-WHITE KC(SITTING AS A JUDGE OF THE CHANCERY DIVISION)

HH Judge Davis-White KC :

[1]For many years, there has been an annual music festival held, in late Summer, in Bingley. Originally called “Music at Myrtle” (a reference to the original location of the festival at Myrtle Park), it later became known as “Bingley Music Live” and from about 2007 was organised by the City of Bradford Council. From about 2019, the festival was organised, not by the Bradford City Council but, by a company called SSD Music Limited (“SSD Music”).[2]A number of companies are mentioned in this judgment. In the music industry, as in others, the identity of the individual behind the company is the most important factor. The individual may have, as did the individuals in this case, a string of different companies that they may use for different purposes.

The SSD companies

[3]In this case, the men behind SSD Music were, effectively, a Mr Stephen Davis (“Steve Davis”) and his brother Paul Davis. Steve Davis appears to have been involved more in the financial side of SSD Music and plays a more prominent role in the facts of this case.[4]SSD Music was one of a number of connected companies. By 2022, the holding company of SSD Music was a company then called SSD Industries Limited but re-named in June 2022 as IG Industries Limited. I refer to this company as “IG Industries”.[5]SSD Concerts appears to have been a trading name for the “SSD group” of companies, though it may not have been a “group” in the technical Companies Act sense. A brochure from 2022 shows, under this trading name, some 8 festivals, 4 venues, 2 pop up events and an on-line platform.[6]In this judgment I sometimes refer to SSD as a generic term for SSD Music and its associated companies (and as including, in particular, IG Industries) without identifying which particular SSD company was concerned.[7]In 2020, the covid pandemic caused the postponement of the 2020 Bingley festival. It was postponed ultimately until 2022. In 2022 the festival was known as “Bingley Weekender 2022” and was held at Bradford Rugby Club (the “2022 Festival”). It took place over the weekend of Friday 5 August to Sunday 7 August and featured headline performers such as Rag “N” Bone Man, The Libertines and Pixies.[8]As the date for the 2022 Festival approached, there were increasing concerns regarding the financial viability of the same and indeed of SSD Music which was responsible for organising a number of events and festivals, in addition to the Bingley Weekender.

The Defendant, Ticketline

[9]Much of the funding for the 2022 Festival had been provided by the Defendant. At that time the Defendant was known as The Ticketline Network Limited (“Ticketline”). It has since been renamed as Orbit Tickets Limited, but for the purposes of this judgment I shall refer to it as “Ticketline”.[10]The Chief Executive Officer of Ticketline was Paul Betesh and in effect the company was owned almost entirely by him and members of his family. In layman’s terms, Mr Paul Betesh was the person behind Ticketline.[11]Ticketline acted as agent for SSD Music in selling tickets for the 2022 Festival (and other events organised by SSD Music).[12]The manner of funding by Ticketline was referred to as “forward funding”. In essence, Ticketline advanced sums by way of loan to SSD to enable SSD to fund festival costs prior to the relevant festival taking place. Although it was suggested to me that the idea was that advances were to be made for a specific event, from the proceeds of advance ticket sales for that event and ultimately repaid from the proceeds of later ticket sales for that event, a situation appears to have developed where there were simply general loans from Ticketline to SSD (in whole or large part structured as loans to IG Industries, SD Music’s parent company). I shall have to explore in more detail the exact nature of the relevant financial relationships.[13]Mr Betesh also became the majority shareholder in IG Industries and a director of the same in about June 2022, at which time IG Industries was renamed IG Industries Limited. This reflected the increasing financial exposure of the Defendant (and indirectly Mr Betesh) to IG Industries. A time came in 2022 when Ticketline (and Mr Betesh) was (were) unwilling to invest further sums into SSD Music and/or the 2022 Festival.

Mr Mellor and Tokyo

[14]Before Ticketline reached the end of the funding road, Steve Davis started looking around for someone to save the 2022 Festival, to assist in its organisation and, most importantly to provide funding to take the 2022 Festival through to its conclusion. This new business partner would not simply be involved in saving the 2022 Festival but SSD and its events and other ventures generally. Steve Davis alighted upon a Mr Aaron Mellor. Mr Mellor too was the person behind a number of companies, including the Claimant, Tokyo Industries (Live) Limited (“Tokyo”).[15]Negotiations were protracted. Various deals were discussed, primarily between Mr Betesh and Mr Mellor. The role of Mr Betesh in the negotiations reflected Ticketline’s economic interest in SSD in terms both of being the main creditor and as being a major shareholder in IG Industries. The general ideas was that Mr Mellor, through one or more companies belonging to him, would advance sums permitting the 2022 Festival to go ahead, take over organising the 2022 Festival and also acquire certain assets (bare or through acquiring the companies that held them), as well as certain proceeds of ticket sales for the 2022 Festival. No final binding agreement was ever reached. Instead, informality ruled the day. In anticipation of an agreement, but as I shall explain, on the basis that a deal had been done, though the detail needed to be fleshed out, the Claimant paid in excess of £756,000 to fund the 2022 Festival and in effect took over the management and operation of the 2022 Festival. Ultimately, it received nothing in return.[16]Tokyo now claims against Ticketline, primarily by way of a claim in unjust enrichment, on the basis that, as a result of the funding provided by Tokyo, the Defendant was unjustly enriched in various ways, not least in retaining proceeds of ticket sales from the 2022 Festival (in effect that, without the Claimant’s funding, it would not have retained because the Festival would not have gone ahead and ticket proceeds would have had to have been refunded) and the share of the booking fee that would otherwise have been receivable by SSD Music under the ticketing arrangement between it and Ticketline, but which Ticketline retained (presumably to reduce the debt owed to it by SSD Music). Tokyo claims a total of just under £601,000 in respect of the former and just over £30,000 in respect of the latter, a total of £630,921.90. In the alternative, it brings a claim on the basis that Ticketline became its ticketing agent with a fiduciary duty to account to it for the proceeds of the ticket sales, which it has failed to do in breach of its alleged fiduciary duty.

The Parties and representation

[17]The Claimant is a limited company which was incorporated on 6 February 2015 under the name Tiki-O Bradford Limited. It changed its name to Tokyo Industries (Live) Limited on 7 October 2022. As I have said, I shall refer to it in this judgment as “Tokyo”.[18]As of 31 December 2020, Mr Mellor was one of three directors of Tokyo. There were 100 issued Ordinary Shares of £1 each. Mr Mellor, as the person with significant control over the company, held over 75% of these issued shares.[19]On 1 January 2022, 100 shares in Tokyo were transferred to a company called FAC251 Limited. At all relevant times Mr Mellor was the person with significant control over FAC251 Limited holding, directly or indirectly, 75% or more of the shares and votes in that company. In fact, he seems to be the holder of the one issued share in that company.[20]Mr Mellor is associated with a number of companies which include the word “Tokyo” within their name. Tokyo Industries as a “brand” operates over 45 bars, clubs and music venues in the UK.[21]Before me, Tokyo was represented by Mr Richard Stubbs, instructed by Ward Hadaway LLP.[22]The Defendant was incorporated on 14 September 1993 under the name “Picadilly Box Office Limited”. It changed its name to The Ticketline Network Limited on 28 January 2011 and then, on 12 September 2024, to “Orbit Tickets Limited”. As I have said, I will refer to it in this judgment by the name “Ticketline”.[23]In the year ending 31 March 2022, Ticketline's four directors were Mr Paul Betesh, Ms L Betesh, Mrs S E Betesh and Mr C Mableson. On 26 July 2022, Ms Betesh and Mrs Betesh ceased to be directors, as did Mr Mableson on 9 August 2022. In 2022-2023 the ultimate controlling party is shown in the company’s filed accounts as being the Ticketline Group Limited, a position that had applied since March 2018.[24]Mr Betesh has been Chief Executive Officer and managing director of Ticketline since being appointed a director in 2018.[25]Before me, Ticketline was represented by Mr McGarry, instructed by Aticus Law Ltd (“Aticus Law”). In the course of Mr Betesh’s evidence, as I shall explain, Mr Betesh made various statements as to the involvement of solicitors at Aticus Law in various decisions that he made. That caused Aticus Law to terminate its retainer. The firm kindly stayed to the end of Mr Betesh’s oral evidence in order to continue noting what that evidence was. Thereafter, Mr McGarry continued to represent Ticketline, but by way of direct access.[26]I am grateful to the lawyers and Counsel on both sides for their helpful assistance in this case.

THE WITNESSES

[27]Before turning to the facts of this case, I should say something about the approach to the evidence of witnesses who first set out their evidence in written statements, verified by a statement of truth, and who are called at the trial to give oral evidence under oath, first being asked to confirm the correctness of their witness statement(s) made by them and then to be asked, by way of cross-examination, questions about their evidence and the case. The court will usually have to assess the credibility of the witness, in terms of their reliability by reference to their honesty and their ability to recall the facts in relation to events that may have been some years ago by the time that they make their witness statement and the time at which they give oral evidence.[28]The most helpful guide to the court is usually the contemporaneous documents as well as the inherent probabilities. The court will obviously consider what the witness says in court but has to be careful as to how it does this. In this respect I repeat what I have said in other cases.[29]As regards assessing evidence, and especially oral evidence, I have well in mind the main authorities customarily turned to by the Courts and Counsel. So far as memory goes, it is important to note that the witnesses, or most of them, have been over matters on a number of occasions over the years and that this can affect their memory.[30]As regards the difficulty of assessing the “demeanour” of a witness as a guide to truth and accuracy and the effect on memory of a continued re-consideration of a case and of documents over time, I would also refer briefly to the convenient summary set out in the judgment of Warby J (as he then was) in R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at paragraphs [39] to [41] where he said (with emphasis removed, and inserting sub-paragraph numbers for bullets in the extracts from the judgment in the Kimathi case, referred to below):
“[39] There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux [2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y [2017] EWFC 36 [2017] 4 WLR 136. Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) at [96]: “i) Gestmin: (1) We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. (2) Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event. (3) Events can come to be recalled as memories which did not happen at all or which happened to somebody else. (4) The process of civil litigation itself subjects the memories of witnesses to powerful biases. (5) Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. (6) The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. ii) Lachaux: (7) Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, 431; Robert Goff LJ in Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1, 57. I extract from those citations, and from Mostyn J’s judgment, the following:- (8) “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…” (9) “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…” (10) Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.” iii) Carmarthenshire County Council: (11) The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness. However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context. [40] This is not all new thinking, as the dates of the cases cited in the footnote make clear. Armagas v Mundogas, otherwise known as The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham’s paper on “The Judge as Juror” (Chapter 1 of The Business of Judging) is also familiar to many. Of the five methods of appraising a witness’s evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness’s demeanour was listed last, and least of all. [41] A recent illustration of these principles at work is the decision of the High Court of Australia in Pell v The Queen [2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant’s credibility. As the High Court put it at [47], “their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …”
The Supreme Court was however divided on the point, and the High Court observed that this “may be thought to underscore the highly subjective nature of demeanour-based judgments”: [49]. The High Court allowed the appeal and quashed Cardinal Pell’s convictions, on the basis that, assuming the witness’s evidence to have been assessed by the jury as “thoroughly credible and reliable”, nonetheless the objective facts “required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt”: [119].” 31. The question of the significance of the demeanour of a witness has also been addressed by Leggatt LJ (as he then was) in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391:- “[36] Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges "in a permanent position of disadvantage as against the trial judge". That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness's demeanour as to the likelihood that the witness is telling the truth. The reasons for this were explained by MacKenna J in words which Lord Devlin later adopted in their entirety and Lord Bingham quoted with approval:
"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help." "
Discretion" (1973) 9 Irish Jurist (New Series) 1, 10, quoted in Devlin, The Judge (1979) p63 and Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging p9). …… [39] To the contrary, empirical studies confirm that the distinguished judges from whom I have quoted were right to distrust inferences based on demeanour. The consistent findings of psychological research have been summarised in an American law journal as follows:
"Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments."
OG Wellborn, "Demeanor" (1991) 76 Cornell LR 1075. See further Law Commission Report No 245 (1997) "Evidence in Criminal Proceedings", paras 3.9–3.12. While the studies mentioned involved ordinary people, there is no reason to suppose that judges have any extraordinary power of perception which other people lack in this respect. [40] This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, "Detecting Lies Using Demeanor, Bias and Context" (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories. [41] No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.”[32]These more recent iterations of judicial experience and scientific learning provide much of the rationale underlying the new regime governing witness statements and best practice in relation to their preparation, in the Business and Property Courts (as from 6 April 2021). Those practices are often followed explicitly by practitioners when preparing factual evidence for witnesses in county court cases, especially if they cover the same subject matter that would, in the High Court, be brought in the Business and Property Courts. As paragraph 1.3 of the Appendix to Practice Direction 57AC sets out:
“1.3 Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory: (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”
[33]Also of importance are the requirements that the witness confirm in his witness statement various matters in accordance with CPR PD57AC paragraph 4.1 and that (unless the statement is signed when the relevant party is a litigant in person or the court orders otherwise) there should be a certificate of compliance by a relevant legal representative.[34]The witnesses for the Claimant, Tokyo, were:(1) Mr Aaron Mellor and(2) Mr Michael O’Sullivan. i) There was one trial witness statement from each of Mr Mellor and Mr O’Sullivan, each being dated 15 January 2025.[35]Mr Mellor, as managing director of Tokyo, gave the main evidence and was cross-examined for just over a day.[36]Much of his cross-examination was about the details of the deals that were discussed and his understanding and beliefs. The relevant contemporaneous emails are in layman-businessman’s speak rather than legal speak (in terms of setting out the economic results of proposed deals rather than the detailed legal transactions needed to bring the same about) and key documents (e.g. draft proposed company reconstructions) were not in evidence before me. At the end of the day the key question is whether Mr Mellor caused Tokyo to pay the sums of over £745,000 for the 2022 Festival that it did in the genuine and bona fide belief that there was a deal between himself and Mr Betesh (as key player for Ticketline and SSD) which only had to be reduced to relevant legal components, recorded in documents and executed. The precise details of such deal in every respect (some of which detail had still to be worked out) are not really significant.[37]I am satisfied that I can rely upon the evidence of Mr Mellor which, upon the key points, was consistent with the contemporaneous documents and the probabilities and which I find to have been given truthfully and to be accurate.[38]Mr O’Sullivan, as Finance Director of Tokyo since its incorporation, gave limited evidence in his witness statements about dealings, which were essentially between Mr Mellor and Mr Betesh, leading up to Tokyo starting to fund the 2022 Festival. Most of his evidence in this respect was what he had been told by Mr Mellor though, to the extent he saw emails at the time, those emails fitted in with that narrative. He also gave some evidence about the position after the festival and the attempts of Tokyo to recover sums. He also deals, in his witness statement, with the payments, between 29 July and early August 2022, of some £746,000 by Tokyo. Ultimately the evidence of such payments was not challenged. I have no hesitation in accepting Mr O’Sullivan’s written and oral evidence, which was given carefully and was convincing not least in being consistent with the contemporaneous documents.[39]Mr Betesh was the sole witness for Ticketline. His witness statement was dated 05 February 2025. It did not contain a solicitor’s certificate of compliance as required by CPR PD 57AC. He gave oral evidence for just over a day.[40]There were a number of points in the Defence, containing a statement of truth by Mr Betesh, and his written evidence which, when added together and in the light of his oral evidence demonstrated attempts by Mr Betesh improperly to colour the picture in a manner favourable to the Defendant. I refer to some of these in later parts of this judgment. In his written submissions, Mr Stubbs identified a number of respects in which the Defendant’s statements of case and/or answers to request for further information and/or Mr Betesh’s written evidence was shown to be the subject of widespread error. Some are minor looked at by themselves but taken together there are many and they betray a pattern of seeking to put forward a false position to bolster the Defendant’s defence and/or its chances of success.[41]In addition, and despite a very clear disclosure order requiring (as agreed) disclosure under Model D (extended disclosure) and a disclosure certificate signed by Mr Betesh as regards the Defendant’s disclosure, there were, in my judgment, huge gaps between the disclosure as ordered and that provided by the Defendant. This was in the face of several pertinent and precise letters from Tokyo’s solicitors chasing for certain documents or classes of documents in the light of spelled out failures in the disclosure given by Ticketline. Mr Betesh’s constant refrain in cross-examination, when asked why there had not been disclosure by the Defendant of documents that, in cross-examination he asserted existed (and supported the Defendant’s case), was that he did not know that they had not been disclosed and/or he had not thought that they were relevant. Mr Betesh is a businessman. He is not stupid. The disclosure review document which set out documents to be produced largely deals with the issue of relevance by defining classes of documents to be produced, so that the simple question was what documents fell within the relevant categories as described. He had the benefit of legal advice. I simply do not accept his evidence on this point. I also draw inferences adverse to his general credibility. I do not accept that documents that he relied upon before me but which have not been produced by the Defendant are documents which show matters that he relied upon.[42]I should mention one further matter that I deal with later in this judgment. Mr Betesh asserted that certain legal documents containing what were intended to become binding heads of terms to give effect to a deal primarily agreed between him and Mr Mellor but involving a number of companies contained false statements of fact and that Aticus Law, the relevant firm of solicitors, was aware of this and were willing complicit participants in this process. (This in fact caused them to withdraw from the case.) Mr Betesh claimed that he did no think that these falsities mattered. The explanation that the legal documents contained false statements was to support the case that he had run on behalf of Ticketline in these proceedings and in his evidence and which in certain respects was markedly inconsistent with what was stated in the documents prepared with the input of lawyers and which were being put forward to Mr Mellor and Tokyo. The result is that Mr Betesh was either propounding falsehoods in relevant respects when he put forward the relevant Heads of terms documents or he was lying to the court. In either event, his credibility as a witness before me was inevitably seriously damaged.[43]In his written closing submissions, Mr McGarry realistically accepted: “The Court will no doubt approach the evidence advanced by Mr Betesh with particular care. That evidence was characterised by a series of unheralded admissions against the Defendant’s interest and case, and the notable concessions relating to the preparation of the ‘July Heads of Terms.’ (footnotes omitted).[44]My general conclusion is that I cannot rely upon Mr Betesh’s evidence where contested or contradicted by other reliable witnesses unless supported by contemporaneous documents or the inherent probabilities and that I should indeed treat his evidence with very great caution. As well as the sort of matters already referred to, I should add that his evidence was on occasions vague, unclear and inconsistent with what he had said on other occasions in the course of giving evidence.[45]There is one final matter that I should address. In his closing written submissions, paragraph 6, Mr McGarry said:
“In being realistic, it is also important to recognise that a witness under cross examination may reveal that historic documents or prior evidence lacked candour, without thereby wholly undermining credibility 4. Ultimately, the issue of how to approach credibility is one of weight, whilst consistently bearing in mind that the Claimant bears the persuasive burden throughout.”
The content of footnote 4 was as follows:
“This is the basis of the so-called “Lucas direction” in criminal proceedings.” under cross examination may reveal that historic documents or prior evidence lacked candour, without thereby wholly undermining credibility 4. Ultimately, the issue of how to approach credibility is one of weight, whilst consistently bearing in mind that the Claimant bears the persuasive burden throughout.”
[46]The so-called Lucas direction (after a criminal case of that name) is a direction sometimes given to juries in criminal trials. The general point is equally applicable in civil trials and is a reminder to the finder of facts that there may be reasons why a person lies on one occasion and that a lie on one occasion does not necessarily mean that what they say on other occasions should be assumed to be a lie too or treated as being less worthy of credit. The current legal summary relating to the direction is set out in the Crown Court Compendium (July 2024, April 2025 update), Volume 1 and is as follows, (footnotes omitted):
“1. A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that:(1) it is shown, by other evidence in the case, to be a deliberate untruth; ie it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.”
[47]As I shall go on to explain, I am satisfied that relevant statements in the Heads of Terms were in fact true, but that it was his evidence to this Court saying that they were false which was untrue. The reason for that untruth was clearly to bolster the Defendant’s defence as the relevant statements in the documents were inconsistent with the Defendant’s case. As such, Mr Betesh’s credibility as a witness of truth is damaged.[48]For completeness I should also mention that there was a written number of formal admissions made by Ticketline by a document dated 2 April 2025. These were as follows:(1) The Defendant made refunds to customers from monies held in its business account including in relation to the [2022] Festival;(2) The Defendant required prior authorisation or approval for refunds from SSD Music Limited (or any relevant event organiser);(3) The last transfer of monies from the SSD Music Ltd bank account to the Defendant’s bank account was 14 December 2020.[49]As regards the first of these admissions, in the answer to a Part 18 request it had been said that Ticketline had never received an instruction from SSD to facilitate refunds in relation to the 2022 Festival, whereas there were contemporaneous emails showing this to be untrue. One of the disclosure issues was Ticketline’s refund policy in general. Documents showed refunds effected by Ticketline between October 2017 and January 2023 of over £1.2 million in relation to events organised by SSD.

THE FACTUAL HISTORY

[50]I turn to the facts in a little more detail[51]Mr Mellor got to know Paul Davis in about 2000. Paul Davis was a Disc Jockey and a close friend. Mr Mellor got to know Steve Davis in about 2010. The two Davis brothers had, as Mr Mellor understood it, set up a number of companies using the name “SSD”, being the initials of Steve Davis. Paul Davis tended to run and deliver the events at the venues. Steve Davis was responsible for artist bookings, ticketing and the “financial side”.[52]Mr Mellor was aware of Ticketline, he having personally purchased tickets from it and by reason of that company having acted as ticket agent for a festival that a Tokyo company had arranged in about 2014. Mr Mellor had not personally been involved in the relationship with Ticketline at that time and it did not continue beyond the one festival. 2017-18[53]In September 2017 a company called SSD Group Holdings Limited (“SSD Group Holdings”) was incorporated. The two initial shareholders were Steven Davis, as to 60%, and Paul Davis, as to 40%. Each was a director.[54]By agreement dated 2 October 2017, Ticketline agreed with SSD Group Holdings to provide ticketing and ancillary services for the sale of tickets (including E-tickets) for events promoted or co-promoted by SSD Group Holdings during the term of the agreement (the “2017 Agreement”). In return, SSD Group Holdings agreed to use Ticketline for the sale of tickets for its events on a Main Agent basis, that is as the official seller for the events. The agreement was to last for a renewable period of three years.[55]Under the 2017 Agreement, the fee structure was as follows. At the point of sale of tickets, Ticketline was entitled to retain the “Booking Fee” which was a fee chargeable to members of the public purchasing tickets. Schedule 1 of the 2017 Agreement provided that Ticketline’s booking fee would be, subject to a minimum fee of £1 in respect of tickets in the same price band, 10% of the face value of the ticket. Of this 10%, a rebate of 50% was payable to SSD Group Holdings on each ticket sold (and not returned or refunded) but effectively at the end of the day, as I shall go on to explain.[56]In addition, Ticketline was entitled to charge a Delivery Fee, as part of the price of a ticket, to the relevant member of the public in respect of tickets sold and despatched directly by Ticketline to a customer. The precise sum of the Delivery Fee depended upon the mode of despatch.[57]Under clause 8 of the 2017 Agreement, the broad manner in which funding and reward for selling tickets operated was as follows:-(1) Ticketline would advance £360,000 to SSD Group Holdings within 3 days of the signing of the agreement (the “Advance”).(2) Ticketline would retain the entire Booking Fee. However, the Advance would be set off against the Initial Rebates (i.e. the 50% of the 10% Booking Fee to which, ultimately and otherwise SSD Group Holdings was entitled and described as a “rebate”).(3) The actual ticket monies (ie. face value of the ticket and leaving aside extra elements of Booking and Delivery Fees) would be paid for each event to SSD Group Holdings by Ticketline on a weekly basis (clause 8.3) though this was subject to clause 8.4, which provided that whilst the Advance was being recouped against Rebates (i.e. SSD Holdings’ 50% of the Booking Fee), Ticketline would only pay ticket monies that it had taken from customers “upon settlement of the events”. Once the Advance was fully recouped, Ticketline was to pay the remaining applicable Rebates together with the ticket monies to SSD Holdings during settlement.(4) Once the Advance had been fully recouped then the parties were to enter into good faith discussions with a view to securing a further advance payable no later than 6 months after recoupment of the Advance. The value of the further advance was to be agreed taking into account the number of events that had taken place and the growth of SSD Holdings during the recoupment of the initial Advance.(5) Ticketline was to be entitled to adjust reported ticket sales to reflect reporting inaccuracies or to take into account refunds resulting from fraudulent activity or other exceptional events.(6) Ticketline was authorised to self- bill, using SSD Holdings VAT number, for the face value of ticket sales (defined as “Ticket Income” and excluding Booking and Delivery Fees). This suggests that SSD Holdings would invoice Ticketline for the Ticket Income (but that Ticketline would be responsible for actually carrying out the invoicing on SSD Holdings behalf). This also suggests that until invoiced and paid over or otherwise accounted for to SSD Holdings, Ticketline would own the Ticket Income but be under a duty to pay an equivalent sum to SSD Holdings. There were provisions on the agreement to allow SSD Holdings to bring to an end Ticketline’s self-billing rights.(7) In the event of postponement or cancellation of an event, SSD Holdings agreed and undertook to reimburse Ticketline in full in respect of all monies received from Ticketline in relation to that event. This suggests that Ticketline would have the liability to members of the public buying the ticket to reimburse/compensate in the event of cancelation/postponement of events. Further, the indemnity was only in respect of sums received by SSD Holdings: it did not encompass sums retained by Ticketline (whether in terms of Booking Fee or the face value of the tickets less certain fees (the Ticket Income), not yet received by SSD Holdings.(8) Ticketline was not liable to refund Booking Fees it had collected, by reason of cancellation or postponement of an event.(9) SSD Holdings was to insure its liability in the event of cancellation of an event or other eventualities leading to a cancellation of an event. Ticketline’s interest was to be noted on the policy.[58]Clause 9 dealt with customer (that is members of the public buying tickets) “chargebacks”. Subject to a time limit and to prompt notification and provision of evidence by Ticketline, SSD Holdings agreed to indemnify Ticketline in respect of the same.[59]According to Mr Betesh, the 2017 Agreement formed the basis of the subsequent relationship between SSD Music/Steve Davis and Ticketline and was renewed orally. However, there is no explanation as to what, if any, sum was agreed to be advanced (and on what terms) under replacement oral agreements replicating the 2017 agreement. This is a point of especial significance given, as I explain below, that Ticketline also seems to have entered into separate loan agreements with IG Industries which were not structured as “forward funding” but rather as ordinary loans (often secured by debenture and/or guarantee) to the holding company of the promotor.[60]Although Mr Betesh says in his witness statement that Steve Davis operated his events through SSD Music which “was reflected” in the 2017 Agreement, it is notable that the 2017 Agreement was entered into by SSD Group Holdings, not SSD Music, and that SSD Music is not mentioned in the 2017 Agreement. Indeed, it is SSD Group Holdings which is stated in that Agreement to be the promoter of “Events” as defined in the Agreement.[61]In his witness statement, Mr Betesh also says that Steve Davis first used Ticketline’s ticketing services “in or around” 2017 and that the arrangement was “the standard one” by which Ticketline acted as ticketing agent and paid the ticket sales onto SSD Music whilst retaining its (Ticketline’s) commission. He says that forward funding only arose in or around the Summer of 2018 when Steve Davis approached him to consider whether Ticketline would forward fund the 2019 Bingley Festival (by then Ticketline having acted as ticket agent for about 236 events organised by Steve Davis and SSD Music). Forward funding for the 2019 Bingley Festival was, says Mr Betesh, agreed and effected in about November 2018. No agreement or written evidence of such agreement for this forward funding nor indeed any other festival or event has been produced save the 2017 Agreement. The 2017 Agreement itself appears to envisage forward funding (though by way of general loan rather than loan for a specific event) which makes the detail of Mr Betesh’s evidence difficult to follow.[62]The agreements thereafter, Mr Betesh says, in his witness statement, “mirrored” Ticketline’s “existing structure” with other promoters:
“in that [Ticketline], as the sole ticketing agent, would process the sale of all tickets and would recoup the amount forward funded from the proceeds of the sale of tickets”
. Detail is singularly lacking. Further the limited recourse to part of the Booking Fee to reimburse advance funding, rather than to the full ticket sale proceeds, which was what the 2017 Agreement provided for was not further explained nor was it suggested that the terms were substantially varied.[63]I should at this point also deal with Ticketline’s position as a member of the Society of Ticket Agents and Retailers (“STAR”) and the terms and conditions which it applied to its ticket sales. . According to the STAR website Ticketline joined in 2011. STAR is the self-regulatory body for the entertainment ticketing industry in the UK. Its function is conveniently taken from its website: “As well as working with government and other bodies for the benefit both of consumers and the ticketing industry, STAR offers general advice and information on ticket buying and provides an approved dispute resolution service for customers who have an unresolved problem with their purchase from a STAR member. …. Buying entertainment tickets from a STAR member – in person, by phone or online – enables you to buy with confidence. All STAR members sign up to our Code of Practice, which requires them to treat customers fairly and make all transactions clear and straightforward.” ….[64]The STAR logo utilises a padlock (with a star on it) within a box. At the side is a pronouncement or slogan as below:[65]The above image was one (among a number of others: such as references to Apple Store and an Android app on Google play) utilised by Mr Betesh in his email footer as CEO of Ticketline. He accepted in oral evidence that the use of this logo was to give confidence to ticket buyers from Ticketline.[66]The STAR Code of Practice (updated in 2017) provides, among other things, that members should sell tickets under our:
“Model Terms and Conditions for Selling Entertainment Tickets or provide a platform for reselling tickets under our Model Resale Platform Terms and Conditions (together or separately known as our model terms and conditions”
[67]Some of Ticketline’s terms and conditions applying to its website were produced. I deal with those produced later in this judgment. Before doing so, I should identify the point that Mr Betesh asserted that there were other relevant terms and conditions in play at various relevant points (for example on SSD Music’s website and that at least one contemporaneous email shows that at some point he had had a say in the content of the terms and conditions), but that for reasons he could not satisfactorily explain they had not been disclosed by the Defendant.[68]In summary, an (undated) page from the STAR website was relied upon which contains the following text regarding “What a member will always do” and regarding cancellations:
“ Refund at least the face value of the ticket if an event is cancelled and the event organiser enables and authorises refunds”
(emphasis supplied as relied upon by Mr Betesh).[69]I note that the current terms and conditions for Ticketline as produced to me provide as follows: “2.7 Once you have purchased tickets, they can only be returned or exchanged or refunded in the circumstances as described below: -2.7.1.1 If we fail to fulfil an order as a result of any negligence, or similar act or omission of our own or in breach of contract, you will be entitled to a full refund including any booking or supplementary fees charged.2.7.1.2 In those circumstances where events are cancelled or postponed or materially altered and a refund is accepted in accordance with these terms (a material alteration is one which in the reasonable opinion of the Event Organiser, makes the Event materially different from the Event that a purchaser of the ticket, taken generally, had reasonably expected) , you will only be refunded for the face value of your ticket(s) on condition that the Event Organiser has refunded monies to us but you will not be refunded the booking and/or processing and/or any other supplementary fees which may have been imposed on the purchasing of your ticket. Where tickets have been sold without a booking fee, we will charge an administration fee of up to 10% of the face value of your ticket(s) which will be deducted from the value of the refund. Where an Event is rescheduled, tickets shall normally be transferable and automatically applicable to the date of the rescheduled Event or alternatively you may be offered replacement tickets. If you are unable to make the rescheduled date a refund shall become applicable subject to the Event Organiser providing us with a refund of your ticket price.2.7.1.3 You should make any request for a refund within 28 days of the date of cancellation, re-scheduling or from the date of any material alteration of an Event. On condition you make any such request within 28 days and We are in a position pursuant to clause 2.7.2 to refund monies to you, then we shall do so within 28 days of your request. If you make any request after 28 days, and if we are in a position to refund ticket monies to you, then any such Refund shall be subject to an additional administration fee of or equivalent to 10% of the refund amount.2.7.1.4 Cancellation Protection – You may wish to secure cancellation protection from a creditable supplier such as TicketPlan (www.ticketplangroup.com). If you do secure any such a policy, please note that We shall not be liable, in any way, for the repayment of any premium, policy excess or shortfall as between your ticket price and level of refund. 2.8 Decisions to cancel, alter or reschedule Events are the responsibility of the Event Organiser, and legal responsibility for refunds or compensation for cancelled or curtailed events rests at all times with the Event Organiser.” 2.7.1.1 If we fail to fulfil an order as a result of any negligence, or similar act or omission of our own or in breach of contract, you will be entitled to a full refund including any booking or supplementary fees charged. 2.7.1.2 In those circumstances where events are cancelled or postponed or materially altered and a refund is accepted in accordance with these terms (a material alteration is one which in the reasonable opinion of the Event Organiser, makes the Event materially different from the Event that a purchaser of the ticket, taken generally, had reasonably expected) , you will only be refunded for the face value of your ticket(s) on condition that the Event Organiser has refunded monies to us but you will not be refunded the booking and/or processing and/or any other supplementary fees which may have been imposed on the purchasing of your ticket. Where tickets have been sold without a booking fee, we will charge an administration fee of up to 10% of the face value of your ticket(s) which will be deducted from the value of the refund. Where an Event is rescheduled, tickets shall normally be transferable and automatically applicable to the date of the rescheduled Event or alternatively you may be offered replacement tickets. If you are unable to make the rescheduled date a refund shall become applicable subject to the Event Organiser providing us with a refund of your ticket price. 2.7.1.3 You should make any request for a refund within 28 days of the date of cancellation, re-scheduling or from the date of any material alteration of an Event. On condition you make any such request within 28 days and We are in a position pursuant to clause 2.7.2 to refund monies to you, then we shall do so within 28 days of your request. If you make any request after 28 days, and if we are in a position to refund ticket monies to you, then any such Refund shall be subject to an additional administration fee of or equivalent to 10% of the refund amount. 2.7.1.4 Cancellation Protection – You may wish to secure cancellation protection from a creditable supplier such as TicketPlan (www.ticketplangroup.com). If you do secure any such a policy, please note that We shall not be liable, in any way, for the repayment of any premium, policy excess or shortfall as between your ticket price and level of refund.[70]These largely (and so far as relevant for present purposes) mirror those in evidence as applicable to on-line ticket sales (though I am uncertain of the date of the terms and conditions disclosed and the period during which they applied). They were as follows: “1. About Ticketline and this Site …. 1.2 Ticketline is a ticket agency. Ticketline sells tickets as an agent on behalf of the organisers, producers or promoters of Events (each an "Event organiser"). We do not host, promote or produce any of the Events which are described on this Site and for which you might wish to buy a ticket. We do not control Events, nought we set ticket prices for Events. We only charge a booking fee, handling fees, up cells or other supplementary fees as determined by otherwise agreed with the Event Organiser. We do not accept any liability arising from a users ticket purchases made via this Site save as set out in these terms … 2. Buying Tickets and Returns …. 2.7 Once you have purchased tickets, they can only be returned, exchanged or refunded in the circumstances described below.2.7.1 Error……2.7.2 Cancellation.If the event is cancelled in full (and not rescheduled), and the Event Organiser enables and authorises refunds, your order will be cancelled and you will receive a corresponding refund for your tickets. However, booking and/or handling fees will not be refunded as Event cancellations are outside our control. In the event of partial cancellation or abandonment of a multi-day event, the original tickets you have purchased will remain valid for the revised Event. Any compensation offers in respect of partial Event cancellations are strictly subject to the terms and conditions of the relevant Event and/or the discretion of the Event organiser and cannot be guaranteed. 1.2 Ticketline is a ticket agency. Ticketline sells tickets as an agent on behalf of the organisers, producers or promoters of Events (each an "Event organiser"). We do not host, promote or produce any of the Events which are described on this Site and for which you might wish to buy a ticket. We do not control Events, nought we set ticket prices for Events. We only charge a booking fee, handling fees, up cells or other supplementary fees as determined by otherwise agreed with the Event Organiser. We do not accept any liability arising from a users ticket purchases made via this Site save as set out in these terms 2.7.2 Cancellation.If the event is cancelled in full (and not rescheduled), and the Event Organiser enables and authorises refunds, your order will be cancelled and you will receive a corresponding refund for your tickets. However, booking and/or handling fees will not be refunded as Event cancellations are outside our control. In the event of partial cancellation or abandonment of a multi-day event, the original tickets you have purchased will remain valid for the revised Event. Any compensation offers in respect of partial Event cancellations are strictly subject to the terms and conditions of the relevant Event and/or the discretion of the Event organiser and cannot be guaranteed. 2..7.3 Rescheduling. If an Event is rescheduled, your tickets will usually be valid for the new date, or alternatively you may be offered replacement tickets for the rescheduled show. If you are unable to attend the rescheduled Event you must notify us by the deadline specified in clause 2.11. If you're refund request is accepted, and the Event Organiser enables and authorises refunds, you will receive a corresponding refund for your tickets (but not booking and/or handling fees). 2.7.4 Material Alteration. If material changes are made to the Event, for example a change of the venue or (for non-multi-day events as bracket the headline acts, or other changes which in our reasonable opinion materially alter the Event, the original tickets that you have purchased will remain valid for the revised event unless otherwise advised. If you do not wish to attend the altered Event you must notify us no later than the deadline specified in clause 2.11. If you're refund request is accepted, and the Event Organiser enables and authorises refunds, you will receive a corresponding refund for your tickets (but not booking and/or handling fees). For the avoidance of doubt, curtailment due to adverse weather conditions; changes of lineup, supporting acts or non-headliners; changes to artist or stage personnel; or cancellation or abandonment of Event where the majority of the scheduled performances take place will not be deemed to constitute a Material Alteration for the purposes of these terms. 2.8 Decisions to cancel, alter or reschedule Events are the responsibility of the Event Organiser, and legal responsibility for refunds or compensation for cancelled or curtailed events rests at all time with the Event Organiser. …. 6. Miscellaneous .... 6.2 These terms, together with our Privacy Policy, represent the entire understanding and agreement between you and us and shall have priority over any and all prior statements, understandings or agreements with oral or in writing.. 6.3 These terms do not create any rights or obligations by against anyone other than Ticketline, you and the Event Organiser, to the extent that it has direct rights and obligations under these Terms. Except as provided in the previous sentence, these Terms do not create any rights enforceable by any person who is not a party to it but does not affect any right or remedy that a third-party has which exists or is available apart from the Contracts (Rights of Third Parties) Act 1999.[71]The matter is, perhaps, most clearly covered by the STAR Code which was also in evidence before me. Members of STAR agree to follow this code. That part of the Code under the heading “Financial Accounting Standards” . Clause 1 provides:
“All members must make sure that they have adequate financial accounting and security arrangements and procedures when handling customers’ money. In particular, members must agree that they will protect all money they receive from customers in one of the following ways. 1.1 Holding it in a separate ‘client account’ at a reputable bank or building society, so it is kept separate from the member’s own money. 1.2 The member will keep a bond, guarantee or other security in the way and for the amount we feel is acceptable. 1.3 The member will arrange insurance cover on the conditions and for the amount we feel is acceptable. 1.4 Any other way we may approve”
[72]In cross-examination Mr Betesh gave (as was the hallmark of his evidence) a confusing and unclear explanation that Ticketline had maintained a separate client account from is office account but said that it had often handed money in the client account over to the event organiser before the event, which course had been approved by STAR. There was no independent nor contemporaneous evidence of any such alleged approval by STAR. When asked why the client account (in relation to which as I understand it no disclosure had been given) had only been mentioned for the first time in cross-examination Mr Betesh asserted that he did not know that it was relevant. The Defendant had solicitors acting for it. The issue of refunds was key as was whether Ticketline had any responsibility in this respect and, if so, what responsibility on the law and facts. I am wholly unpersuaded that Mr Betesh did not know that the issue of a client account and how it was used and what relevant bank statements/ledgers showed was not highly relevant. The point was highlighted by issue 3 of the Statement of Issues in the Disclosure Review Document prepared for the proceedings which was in the following terms:(and which was agreed, and in relation to which disclosure under Disclosure Model D (Extended Disclosure) was also agreed and then on 12 July 2024 ordered to take place by DJ Hambler and in relation to which Mr Betesh signed disclosure certificate):
“What do the Defendant's bank statements and accounting records show regarding the flow of funds related to the Festival, including ticket sales, any payments to SSD and offsets against alleged debts?”
[73]Clause 3 under the same heading of the STAR code provides: “3. If an event is cancelled before the event date or before the member has passed the customer’s money to the organiser of that event, the member must do their best to refund the customer’s money as soon as possible (once the tickets have been returned to the member, if necessary). However, if the member has already passed the customer’s money to the event owner, the member will not be responsible for refunding the customer’s money unless the event organiser returns the money to the member”.[74]As I shall explain, one of the issues canvassed before me was who had legal liability regarding refunds and whether, had the 2022 Festival been cancelled for solvency reasons, Ticketline would have been exposed in this respect. This relates to the question of whether or not there was a benefit to Ticketline in this respect when the 2022 Festival went ahead due to funding from Tokyo.[75]In my judgment it is necessary to distinguish different legal obligations that may arise and the factual source of payments that have been made. Under the 2017 Agreement, as assumed to apply, (and given, as I shall explain, that Ticketline was owed substantial sums by way of forward funding some years before 2022), although SSD Music/IG Industries was entitled to the proceeds of ticket sales (less that element representing the booking fee) such entitlement did not crystallise until an event was finalised. Up till then Ticketline retained the proceeds of ticket sales and was liable (at the least) in debt in respect of such proceeds once the event was concluded. Any sums that Ticketline advanced were advanced not in satisfaction of any obligation to pay the proceeds of ticket sales to the organiser (if they had been they would not have been a loan) but by way of a separate loan. This loan could be set off against sums due to the organiser in respect of the proceeds of ticket sales once the event had been finalised but it could not be set off against ticket money proceeds before that date. Nor, as I shall explain, was it.[76]This meant, looking at the STAR Code, Ticketline had not passed the customer’s money to the organiser (see STAR Code paragraph 3) when it used the customer money to make loans to SSD Music/IG Industries and in circumstances where the obligation to pay the organiser the ticket money remained in being. Although the money received from customers may have been used by Ticketline to make loans to SSD Music and/or IG Industries this was not passing to SSD Music the customers’ money as customers’ money and in discharge of the obligation to pay such sums to SSD Music. Accordingly, in those circumstances if the organiser cancelled an event, on the face of things there was no need for the organiser to arrange for payment of any sum to Ticketline, at least as regards the face value of the ticket, to enable refunds to take place. There was nothing for SSD Music to “refund” nor any payment by it necessary to “enable” repayment”. As between Ticketline and SSD Music, SSD Music had not received a sum quae ticket monies. Ticketline still, at least notionally, retained the ticket sale proceeds and had not accounted to SSD Music/IG Industries for them. Although the actual monies received and banked may have been paid across to SSD Music/IG Industries that was as a separate loan (by way of forward funding) to SSD Music and not as being in satisfaction of any liability to account for ticket sale proceeds. In terms of clause 3 of section F of the STAR Code, Ticketline would not have passed the customer’s money to the event owner (or organiser). In terms of satisfaction of that obligation (by actual payment or by set off) would only be made at the end of the event in question. Therefore, on the face of it, Ticketline would be obliged to refund tickets if the organiser cancelled the event and other conditions were met: it would be no answer to say that it had made an advance by way of forward funding to SSD Music/IG Industries.[77]On 31 March 2018, members of the Betesh family transferred their shares in Ticketline to The Ticketline Group Limited. Ticketline was thereafter its wholly owned subsidiary.[78]IG Industries was incorporated under the name SSD Industries Limited on 21 December 2018. Initially 60 shares were allotted to Steve Davis and 40 shares to Paul Davis. Each of Paul and Steve Davis was also appointed a director. 2019[79]On 26 May 2019, IG Industries granted a fixed and floating charge to Ticketline. On the same day, each of Paul and Steve Davis transferred 20 shares such that thereafter the registered shareholders were: Richard Wylie 20 Paul Betesh 10 Colin Mableson 10 Steve Davis 40 Paul Davis 20[80]The inference is that loans were then made or already in place by Ticketline to IG Industries. There is confusion in the evidence as to whether this was or was not “forward funding”. Eventually, and in favour of Ticketline, I assume that this was treated as a form of forward funding and that the arrangement was that the loan owed to Ticketline could be set off against an obligation of Ticketline to pay the organiser the relevant ticket monies.[81]On 11 June 2019 Mr Mableson was appointed a director of IG Industries.[82]By Deed dated 10 July 2019 and entered into by Steve David, as Guarantor, IG Industries (described as the borrower) and Ticketline (as lender), Ticketline was said to have agreed to provider IG Industries with facilities on the terms set out in the Funding Agreement (being defined as an agreement dated 26 May 2019). All monies advanced under the Funding Agreement and the deed were acknowledged by the parties to be secured under the Debenture of 26 May 2019. The Deed regulated the terms of a further agreed advance by Ticketline to IG Industries of £230,000 (the “Further Advance”). A guarantee by Steve Davis contained in the Deed and guaranteeing repayment of sums lent by Ticketline under the Funding Agreement and by way of the Further Advance was described as a condition precedent to the availability of the facilities.[83]Under the operative part of the Deed, the Further Advance was to be repaid from proceeds realised (and retained by the Lender under the terms of the Funding Agreement) from a number of sources including (among others) ticket sales from This is Tomorrow 2020 (on sale from 1 September 2020) and the balance of proceeds owed in respect of Bingley Live 2018. Repayment was to be made by 31 December 2019. The reminder of the Deed dealt primarily with the detailed terms of the Guarantee. As I have said, I am prepared to assume that informally this agreement was later widened to cover all festivals/events organised by SSD companies and that all sums lent by Ticketline were lent (or later treated as lent) as a matter of legal liability to IG Industries, the holding company of the SSD companies. I suspect it does not affect the legal outcome whether or not the last point is correct.[84]According to Mr Betesh this Deed was one (he thought the third) of the formal loans put in place between Ticketline and IG Industries. He said that by 2020 there had been agreed a composite interest free loan facility (though under the July 2019 Deed the Further Advance did carry an obligation to pay the same with interest) with an understanding that the loan could be set off against the obligation of Ticketline to pay the proceeds of ticket sales from any event.[85]According to filings at Companies House, on 24 July 2019, all the shares held by each of Paul and Steve were transferred to IG Industries.[86]According to Mr Betesh’s somewhat economical explanation in his witness statement, it is his “understanding” that Ticketline provided IG Industries with a formal loan (not produced or further detailed) which was “duly secured” over IG Industries by way of a charge and that “as a “gratuity” for facilitating the loan a 10% shareholding was provided”. As has been seen, it appears that Mr Betesh received a 10% shareholding but so did Mr Mableson and so did a Mr Wylie.[87]On 12 November 2019 SSD Group Holdings was dissolved, following a striking off process. 2021[88]In April 2021, Mr James Lee, Head of Marketing, of Ticketline emailed Mr James Grant of SSD providing details of tickets refunded on the “This is Tomorrow Event” and the “Bingley Weekender” event. The latter amounted to some 397 refunds out of 4,628 tickets sold, said to amount to 8%. Steve (apparently Steve Davis) replied that information in this format was not “working out” and asked for monetary values. By email dated 22 April 2021, a breakdown of monetary values for the Bingley Weekender was given: the refunds were some £35,040.[89]By email dated 27 October 2021, sent by Mr Drummond of SSD to Ticketline, Mr Drummond sent an invoice for £300,000 + vat “for the advance on ticket rebates” and said that he understood that the “outstanding balance for this [£60k or 70k]” was to be settled in cash. He asked when the funds would be sent over as “we are planning our cash outlays in the next few days at present”.[90]By email dated 28 October 2021, in response to an email from SSD asking for a breakdown of the £300,000, Mr Bartlett of Ticketline replied attaching to his email “the latest overall balance between sales and payments”. It was said that of the £300k, there were approximately £160k of refunds for Bingley, approx. £40k refunds for Pixies and DMAs and that £90k had been paid to SSD at the beginning of October. This accounted for the majority (£290k) of the £300k. After the payment that day by Ticketline, apparently of £60k, as promised by an earlier email of that date, it was said that Ticketline was holding a further £13.5k against “refunds that have to be processed and refunds coming in daily”. The omission in disclosure of any ledgers showing the individual positions as between Ticketline/SSD Music on a festival/event by event basis is telling.[91]SSD then asked for the remaining £10k of the £300k but was told that that had already been swallowed up in “other refunds”. As regards the October payment of £90k SSD asked whether this was “part of the overall loan from Ticketline” or “something else”.[92]Emails at this time show that SSD was asked formally to approve refunds but that they were effected by Ticketline, obviously out of monies that it was holding (or had received and not paid over to SSD by way of reduction of any liability to pay ticket proceeds to SSD Music) in respect of ticket sales.[93]There is in evidence a budget for the 2022 Festival. It is unclear when it was prepared but the budget showed expenses of some £935,450 (net of VAT) and projected income of only £831,065 (net of VAT), suggesting that the event was anticipated to make a loss of in excess of £104,000. As I understood matters, it was common ground between the parties that the 2022 Festival in the end did make a loss and that at all material times of the negotiations between the parties it was anticipated to do so.[94]In his witness statement, Mr Betesh explained that forward funding by Ticketline of SSD events continued into 2021 because there was still a hope that proceeds from ticket sales would meet the sums advanced by Ticketline and because of a hoped-for sale of rights to promote and host a particular event for some £4.5 million, which sale, ultimately, did not materialise.[95]Towards the end of 2021, says Mr Betesh, it became apparent to him that the amount of debt owed to Ticketline was “excessive” and he had very real concerns that the debt would not be repaid. He had, he says, many discussions with Steve Davis about this issue, the likelihood that Ticketline would not be prepared to lend further sums and the need to look for outside investors. It is against that background that Mr Mellor comes onto the scene.[96]Before I address that, I should also mention that SSD had been renting a property from a Tokyo company and, according to Mr Mellor, largely as a result of the Covid pandemic there was a large debt outstanding to Tokyo Industries Ultimate Limited. Some £70,000 or so seems to have been outstanding in this respect by the end of 2021. o[97]The more direct involvement of Mr Mellor arose as follows. At about the beginning of December 2021, Steve Davis got in touch by email with Mr Mellor, copying in Mr Betesh whom he described as being “from Ticketline and a partner in SSD”. It appears from the face of the email dated 1 December 2021 that Steve Davis was seeking to set up a meeting between Mr Betesh and Mr Mellor regarding particularly a Newcastle festival, “This is Tomorrow”, as well as the “touring business”, the latter being proposed to re-start through Mr Mellor’s venues.[98]In the statements of case, the Defence did not admit that Mr Betesh, as CEO of Ticketline, had been introduced by Steve Davis to Mr Mellor at this time as a “partner” in SSD. Once the email was produced, Mr Betesh had to accept that this had occurred. Such a description was not surprising given the close business relationship between Ticketline and SSD, including relevant shareholdings. I accept the submission of Mr Stubbs that the pleading position that I have described was part (although perhaps one of the lesser significant examples) of a wider attempt by Mr Betesh to put forward an untrue, but what he perceived as more favourable to the Defendant, version of events and in particular this was an attempt to downplay the real control that Ticketline had over SSD Music and its associated companies.[99]Another example of this was Mr Betesh’s statement at paragraph 28 of his witness statement to the effect that Mr Mellor was approached at this time as a potential investor and that Mr Betesh had not previously met him. Contemporaneous emails between the two men show that both men thought that they had met before in that year (albeit briefly) at the “This is Tomorrow” festival, an annual festival taking place in Newcastle, usually in about September, and that Mr Mellor was approached not just as an investor but, in Mr Mellor’s words in an email at this time: as someone who could “add significant operational and programming benefits” and a “wider venue opportunity”.[100]According to Mr Mellor, he met with Mr Betesh and Mr Mableson (then operations director of Ticketline) on 16 December 2021 in Manchester. Steve Davis had in effect set up the meeting but was not present at the meeting as eventually arranged. In my judgment this recognised the reality, that the real person with interest in and control over SSD’s future was now Ticketline.[101]According to Mr Mellor, Mr Betesh’s father, Mr Daniel Betesh, had been a big name in the band promotion and management business “Kennedy Street Enterprises” in the 1960s and 1970s. Indeed, he had at one time been a shareholder in Ticketline.[102]Mr Mellor explained in his witness statement that had had attended the December meeting because he was interested in either buying 100% of the business of SSD Music or purchasing shares in it, which he understood Mr Betesh’s company to own, and then running it with Steve Davis and his (Steve Davis’) brother. In particular, he felt that he could help run SSD and its business more effectively and that the Tokyo Group’s venues could benefit from hosting shows of the type SSD Music was promoting. Mr Mellor understood that SSD Music was under financial strain partly due to the covid pandemic and partly due to a lack of adequate capitalisation. Mr Betesh, he understood, had become involved as a shareholder to help provide additional funding going forward. At the December meeting, Mr Mellor says that Mr Betesh referred, with some frustration, to having made substantial loans to SSD Music which he was uncomfortable with and wished to recover by selling some or all of his stake in the company.[103]As regards Mr Mellor and Tokyo, things apparently went no further at this stage. 2022

` Or words to that effect

[104]As regards a different event, the “This is Tomorrow” festival, it is quite clear that Mr Betesh was in effect directing the refunds policy and terms and conditions of SSD Music. By email dated 8 April 2022, in connection with the “This is Tomorrow” festival, Mr Betesh wrote to Steve Davis as follows: “Hi Steve Please can you get the text changed on the website to say Ticketline will be in touch to offer face value refunds to give you the opportunity to retain your ticket for next year ` Or words to that effect 104. Please do state refunds are at face value 105. Cheers” 106. In my judgment, though this may not have related to the 2022 Festival, this (and a later email from Mr Betesh of 8 April 2022 on the same subject) demonstrates(a) a control by Ticketline over refund policy and(b) the realities of the need (factual and, I would add legal) to make refunds where appropriate to do so.[105]According to filings made at Companies House in June 2022, there was a significant change of control in relation to IG Industries, said to have occurred in April 2022. The relevant filings, made on or about 23 June 2022 (and which therefore raise an issue of possible backdating) relate to events said to have occurred on 23 April 2022 and show the appointment of Mr Betesh as a director of IG Industries; a notification of Mr Betesh as a person with significant control over IG Industries on that date, in place of Steve Davis; an allotment by IG Industries of a further 600 shares; and a confirmation statement confirming the shareholdings in SSD as then being as below: Paul Davis 20 Steve Davis 40 Richard Wylie 20 Paul Betesh 610 Colin Mableson 10[106]According to a Schedule produced by the Defendant in answer to a CPR Part 18 request, by 30 June 2022 Ticketline had made “Advances & payments to SSD” amounting to a total of £9,942,581.46. The schedule simply gives dates in one column and sums of money said to have been advanced or paid in a second column. The earliest date given is 21 November 2017. There is no further explanation. The schedule shows certain credits (to SSD) against the sums said to have been advanced or paid by Ticketline but what these represent is not explained. These credits are few and far between. The last two appear to be £7,600.25 (14 December 2020) and £50,000 (05 November 2020). It has to be borne in mind that SSD Music was running a number of events and festivals. When I asked for ledgers showing what the state of account was between Ticketline and SSD in relation to specific festivals I was told there were not any ledgers showing that. Mr McGarry sought to demonstrate in re-examination of Mr Betesh that payments of sums by Ticketline in satisfaction of SSD’s entitlement to the proceeds of ticket sales (rather than payments by way of loan, even if the actual sums paid over/transferred were sourced or funded from Ticketline’s receipt of ticket sales) was recorded by way of individual “remittance advices” but the difficulty was that Mr Betesh was unable to help in any meaningful way in explaining how records had been kept and what it was that the remittance advices really showed. Indeed in an email of 5 December 2022 Mr Davis referred to “all the income is sat as loan” and as not being able to understand the legal basis/nature of payments made by Ticketline and which payments were loans, which were ticket monies (paid over as such) and so on.[107]In an email of 19 July 2022, Mr Betesh explained that in fact Ticketline “had taken control of SSD until the debt to Ticketline is reduced” but that the shares had been inadvertently issued in his name (in April) rather than that of Ticketline. The position of Ticketline as shareholder of the 600 issued shares was shown by filings at Companies House made in July.[108]By July 2022, negotiations between Mr Mellor and Mr Betesh restarted. Again, Steve Davis had limited direct involvement. Given the now position of Ticketline as shareholder and major creditor of SSD this is not surprising.[109]On 8 July 2022, a Non-Disclosure Agreement (the “NDA”), signed by Mr Betesh for IG Industries and by Mr Mellor for “Tokyo Industries Limited” (company registered no 0646221) was entered into between the two companies. (The front sheet actually refers to the agreement as being made between IG Industries and Tokyo Group Limited). The registered number of Tokyo Group Limited was 06462216. It seems likely that the last digit was left out of the company registered number given in the NDA. There is therefore some doubt, based on the contractual document itself, as to which Tokyo entity was involved but I accept Mr Mellor’s evidence that Tokyo Group Limited was the finance vehicle for the group umbrella structure at that point and that it was the relevant contracting Tokyo company under the NDA.[110]The NDA was fairly standard and covered confidential information to be provided by IG Industries to “Tokyo Industries Limited”. The purpose for which the information was to be supplied was (as set out in Schedule 2) to enable Tokyo to carry out due diligence with a view to taking a shareholding in IG Industries.[111]The NDA described IG Industries as carrying on “the business of running venues and concert and event promotions and associated services”. (In my judgment this probably included venues and concerts etc, carried on indirectly by IG Industries through subsidiary or connected companies such as SSD Music).[112]In cross-examination, Mr Mellor explained that Tokyo Group Limited was the finance vehicle within the Tokyo group structure. At this point, he said, and I accept, Mr Mellor, through Tokyo, was looking to acquire the whole business of IG Industries and SSD Music and the NDA was not limited to or put in place to provide information limited to the 2022 Festival (or even the 2022 Festival and that festival in future years).[113]By email dated 9 July 2022, Mr Betesh sent Mr Mellor a number of documents by email with the subject matter “SSD Info”. From the file names it appears that the documents in question included full accounts of SSD Music to or dated September 2020; a profit and loss account as at March 2022 and a “Trade Creditors Listing Sanitised”.[114]By email dated 13 July, Mr Bolger sent Mr Mellor an updated profit and loss account and balance sheet. In cross-examination, Mr Mellor said that he had looked at the balance sheet. In particular , in the balance sheet for SSD Music Ltd as at 30 June 2022, a debt of over £2.9 million was shown as owed to Ticketline by SSD Music within the category of creditors amount falling due after more than a year. Mr Mellor said, and I accept his evidence, that he thought the debt to Ticketline was about £2.8 million at this time so the £2.9 million figure came as no surprise to him. Further, the fact that the debt was shown as falling due after more than a year suggested to him that the debt was not tied to being repaid from the proceeds of ticket sales or as he put it, was not an advance against (and to be repaid from) the proceeds of ticket sales (to which SSD Music was entitled)..[115]On 14 July 2022, Mr Bolger sent to Mr Mellor by email a copy of a “restructuring document” (not in evidence) which was said to detail: the “proposed group restructure and investment. The restructure will result in trading through clean companies so that your investment is not affected by previous trading”[116]By email dated 15 July 2022, Mr Betesh explained a number of matters to Mr Mellor. These included the fact that more than £1 million was needed to take “the company” (whether IG Industries or SSD Music is not clear) “forward” and turn its situation around (the more Mr Mellor could invest the more, it was said, the more he would get out). It was said that some of any investment would need to be by way of equity and that some money would have to come back to Ticketline to reduce the debt owed to it by SSD. It was suggested that Mr Mellor might take a return on his investment by distribution of profits rather than taking repayment of any sum invested (presumably as a loan). As regards Ticketline, it was said:
“Whoever we take this forward with does have to agree to some money coming back towards the debt to Ticketline. The company debt position needs to be reduced. Ticketline have increased its debt in order to reduce third party debt in the company. 119. There is no effective security for Ticketline in the ticket money as we are liable to the customer if the show does not go ahead in line with Ticketline’s terms and conditions. The document suggested debentures with equal priority but I can agree to letting your security sit before mine but we would both have debentures over the whole company. 120. Please can you have another look at what we are proposing in the light of the above and let me know your thoughts.”
[117]In cross-examination Mr Betesh was asked about his statement in the email that Ticketline was “liable to the customer if the show does not go ahead in line with Ticketline’s terms and conditions.” In what proved again to be a series of confusing answers, Mr Betesh appeared to say that this statement was “untrue”. He said, in effect and as I understood him, that what he said at the time was just a negotiating tactic. I do not accept his oral evidence. As was pointed out to him, what he said in the email was true if(a) Ticketline was still liable to account to SSD Music or, put at its lowest, Ticketline was liable to pay SSD Music a sum equal to the value of ticket sales, less relevant booking fees which payment was only due once a festival was completed (or cancelled) and(b) in light of the fact that, as he had earlier admitted, in the past SSD had always agreed to ticket refunds properly requested and it was likely that it would agree to ticket refunds were the 2022 Festival to be cancelled.[118]Also on 15 July, a number of filings were made at Companies House in relation to IG Industries. These included a confirmation statement that 600 shares in IG Industries were transferred by Mr Betesh to Ticketline on 25 April 2025. Again, there must be doubt about the accuracy of this information both in terms of what was done and when it is said to have been done.[119]By email dated 18 July 2022, Mr Mellor explained that he had noticed a recent filing of a change of person with significant control in relation to SSD from Mr Betesh to Ticketline. This seems to be a reference to the filings at Companies House on 15 July 2022. Mr Mellor asked if things were now “fixed” (by which I take it, he meant finance arranged so that a deal with him was no longer sought). Mr Betesh replied (by insertion into Mr Mellor’s email in the relevant email chain by the email of 19 July referred to below) that:
“This is as I explained in our call that Ticketline had taken control of SSD until the debt to Ticketline is reduced. Shares were inadvertently issued in my name rather than Ticketline and this was rectified last week. We still want to do a deal.”
[120]I accept the submission on behalf of Tokyo that by this time Ticketline had indeed taken over control of SSD and that it could require SSD Music to consent to a refund of tickets if the 2022 Festival did no go ahead and that Ticketline would suffer severe reputational damage if refunds were not made in such circumstances. I do not accept Mr Betesh’s evidence that Ticketline did not have control because it did not have sufficient board members of SSD Music (it could have appointed more if needed) and because Mr Paul Davis was asserting he had never sold his original shareholding and that his brother had forged his signature on relevant documents (there also being no contemporaneous evidence before me of such allegations by Paul Davis). The email of 18 July reinforces the fact of control that I consider to have been exemplified by way of control over refunds in relation to the “This is Tomorrow” festival as shown by the emails in April 2022.[121]By email dated 19 July, Mr Betesh was proposing to Mr Mellor that he, Mr Mellor, agree a “short term solution” being a short-term loan which could then secure the future of the 2022 Festival (and, as I read the email, the loan could be secured against the 2022 Festival in some way).[122]By email dated 21 July 2022, Mr Mellor was making a case that, on his calculations, the 2022 Festival would make a loss of £550k. On the figures that he had seen there was then some £533k of sums in respect of ticket sales which he estimated would increase to about £550k. That ticket money was needed (rather than being retained by Ticketline) to prevent the £550k loss. “You need the £550k Ticket Money included in this P&L or it just wont work. If you cancel it you will need to refund the ticket money anyway (especially as Ticketline now own the festival at companies hse) The Ticket money has to go in for the festival to work-or it gets refunded if the festival cancels. I will loan in on the terms Adam previously suggested to cover cashflow and timing-that will then get everyone through BINGLEY and we can plan a proper restructure-but without the full ticket money going into this P&L its impossible for this to work so the festival cancels the £533K needs returning anyway-so whichever way that money is lost. This can be managed but only with the ticketmoney in.” If you cancel it you will need to refund the ticket money anyway (especially as Ticketline now own the festival at companies hse) The Ticket money has to go in for the festival to work-or it gets refunded if the festival cancels. I will loan in on the terms Adam previously suggested to cover cashflow and timing-that will then get everyone through BINGLEY and we can plan a proper restructure-but without the full ticket money going into this P&L its impossible for this to work so the festival cancels the £533K needs returning anyway-so whichever way that money is lost.[123]By email dated 22 July 2022, Steve Davis was looking to Mr Betesh for a further cash injection to meet relevant payments or “lose the stage” such that the 2022 Festival could no go ahead. Mr Betesh was not prepared to inject more cash.[124]By 26 July 2022, a flood of emails shows the critical stage at which the 2022 Festival stood. Essentially, unless funding was found so that invoices could be paid within a day or so the 2022 Festival would have to be cancelled.[125]One matter that arose was the fact that apparently some £550k or so had been taken by way of ticket sales for the 2022 Festival. If the 2022 Festival was cancelled there was, on the face of it, an exposure to refund those ticket monies to paying customers. Mr Mellor, in emails at this time, treated this as an existing asset in any deal. However, Mr Betesh, in economic terms, regarded those monies as having been spent on other festivals and no longer existing. Mr Mellor, however, responded:
“We have to stop thinking this way its counterproductive, the fact so far as the Bingley customer is concerned is that TICKETLINE have their money if the event is cancelled TICKETLINE must return it, Ticketline own promoter now- so I cant see any way it cant [sic] not refund that money”
. Mr Mellor was again speaking economic and social realities. I will have to deal with the legal analysis later.[126]On 27 July 2022 Mr Betesh was seeking from, in effect one of his employees, Adam Bolger (financial manager at Ticketline), confirmation of his (Mr Betesh’s) understanding that the SSD Debts were in the order of “£2.5m gross Ticketline; £274k net on ticketing deal and another £400k of debts”.[127]Mr Bolger, by email dated 27 July sent to Mr Mellor at 09:58 said: “I am replying on behalf of all parties to try and remove any emotion from the position, and to try and get a resolution on the last hour. Ticket Money Loan Tokyo will cash flow Bingley Festival and ensure that the event opens and proceeds to prevent refunding of tickets. On successful completion of the event Tokyo will loan Ticketline £550k on account of ticket monies and Ticketline will pay over the balance of ticket monies held for Bingley above the £550k but not rebates which are being worked off against an advance with SSD Music… 132. Tokyo provide cashflow to Bingley Festival to enable the festival to proceed and fully open to prevent refunding of tickets…”.[128]In my judgment this email confirms once again that at this time(a) the only relevant contractual arrangement was that the element of ticket sales to which SSD was entitled by way of rebate was to be used to reduce advances by Ticketline; and(b) SSD Music was entitled to the vast majority of the proceeds of ticket sales and at this point there had been no set off nor agreement to set off the same against advances made by Ticketline.[129]I should also add that the negotiations between Mr Mellor and Mr Betesh were characterised in the Defence as being focused upon Mr Mellor becoming an investor into SSD by way of a transfer or purchase of a shareholding from the parent company, IG Industries. It is said that:
“ The further discussions did not involve any indication that Mr Mellor intended to take over the operation of SSD or assume any responsibility for organising, promoting or managing the Festival”
. In fact, the contemporaneous emails show the quoted passage to be simply untrue.

The Three Options: July 2022

[130]Various permutations of deal, including an immediate loan by Tokyo, were discussed. However, by an email dated 28 July 2022, Mr Mellor set out two options (by way of a negotiated deal) and a third option of a cancelled festival.[131]Option 1 was described as “No Security/No Risk-Immediate Asset Sale”. It involved “we” (which is a Tokyo entity) purchasing all assets, IP and Goodwill to include 100% of the share capital of IG Festivals Ltd and SSD Venues Ltd for £1. Ticketline would keep all ticket money in respect of all events/venues received up to 1 July. [Again suggesting that Ticketline had the ticket money and/or was obliged to pay it or an equivalent sum to SSD]. All tickets sales from 1 July would be paid over on maturity of the events. In summary, the proposed deal was summarised as being one under which Ticketline would obtain £500k ticket money + a £475k VAT Refund + £200k potential future VAT Returns, so circa a return of £1.2m in respect of Ticketline’s (otherwise) £2.8 million write off. Precisely how Ticketline would receive a VAT refund was unclear but it seems likely that this was intended to be used to pay down debt owed to Ticketline by SSD Music or possibly by IG Industries.[132]Option 2 was described as “Rev Share/Loan to Ticketline”. It was described as involving (as in Option 1) “We” (that is a Tokyo entity) purchasing all assets, IP and goodwill, to include 100% of the shares in the two SSD companies mentioned in Option 1 for £1. Tokyo Industries would then take over and pay for all contract supplier costs for Bingley 2022 and pay them directly. Ticketline would release all ticket money for Bingley and any other show as it matured. “NewCo” would then pay Ticketline 5% of all ticket sales + 10% of “PDQ” up to a combined value of £1 million. Ticketline would retain future ticketing income until the £1m cap had been repaid. Ticketline would retain £475k VAT initial VAT return but pay forward any future VAT returns on a £ for £ basis (expected to be £200k). Tokyo would loan Ticketline £550k payable over 6 months in monthly instalments at 1.5% interest. The end result for Ticketline was said to be that Ticketline would receive, as against a debt or investment of £2.8 million, a £1.457m return (being the £1m and the VAT of £475k).[133]The third option was “Event Cancellation”. The 2022 Festival would be cancelled. Ticketline would have to refund customers £550k ticket money and there would be terminal reputational damage to the festival, SSD and Steve David personally, which would in turn impact upon “This is Tomorrow”. There was then a possibility that the repayment on the VAT return would be lost because of a formal insolvency intervening before the refund was received. “This gets you zero value”.[134]The email ended by saying that if Option 1 or Option 2 could be agreed in a binding heads of terms document then Tokyo would place some £200k to pay for “critical immediates to keep this rolling”. If the heads of terms did not materialise into an agreement, then Ticketline would have to repay the £200k. The relevant wording was as follows:
“If we can agree either OPTION 1 or 2 in a binding HoT - I will place £200k today to pay for critical immediates to keep this rolling. If the Binding HoT is not completed after agreed - Ticketline will need to repay this £200k. We can then agree a short form asset purchase agreement when your lawyer returns tomorrow to complete by Monday.”
[135]The email is in economic/businessmen terms and precisely how, in legal terms, Option 1 and Option 2 were envisaged as being effected and precisely what they involved was not entirely clear to me. However, that does not matter for reasons that I will explain later in this judgment.[136]I should add that it is obvious from the context, but also confirmed orally by Mr Mellor, whose evidence I accept, that the references under Option 1 and Option 2 of “we” buying various things was clearly a reference to a relevant Tokyo company owned/controlled by Mr Mellor and which he might nominate in due course.[137]Mr McGarry made much of the closing words of the email about provision of £200,000. As I see it this was a proposed interim position whereby if there was a binding heads of terms the £200,000 would be paid by Tokyo and if the heads of terms was not completed (and it seems to have been envisaged separately that the heads of terms would be “completed” by at the least a short form asset purchase agreement when Mr Betesh’s lawyer returned) the £200,000 would be repaid. However, a binding heads of terms was not agreed (though as I find Mr Betesh constantly assured Mr Mellor not to worry as there was an agreed deal) and in the event Mr Mellor, through Tokyo, committed a lot more than £200,000 as the only way of keeping the 2022 Festival “on the road” and avoiding the need to cancel it. Although I accept that at this point Mr Mellor was indicating an intention to commit only to £200,000. I do not accept, as Mr McGarry submitted, that “the risk to both parties was capped at £200,000”. The suggestion in question was, as I have explained, overtaken by events.[138]By email dated 28 July sent at 20:06 Mr Betesh told Mr Mellor that “in principle” he preferred “Option 2 with some tweaks” which he then set out. However, by further email sent at 23:15, and following Mr Mellor’s response to the “tweaks”, he wrote that “We will agree to option 1” (though seeking to vary it by asking if Ticketline could pay ticket money over “from today rather than 1 July”).[139]One point that Mr Mellor and Mr Betesh addressed in their respective emails was the issue of cash proceeds of ticket sales in respect of the 2022 Festival. Mr Betesh made the point, in the context of Option 2, that “Ticket monies had already been paid across, so if I pay out a further £675k this effectively takes the debt to £3.5m”. As I understand the correspondence, Mr Betesh was saying that under Option 2, Ticketline would be paying over a further £675k of ticket sales but that the proceeds of the same had already been paid across to SSD Music (and/or IG Industries) as “forward funding”. The result would be to increase the debt owed to Ticketline to £3.5m. Mr Mellor’s point was that whether or not sums had already been advanced by Ticketline (in fact using the proceeds of ticket sales that it had got in), Ticketline had simply lent sums to SSD Music/IG Industries. The actual ticket sales proceeds were something that Ticketline had to account to SSD Music/IG Industries for: the relevant obligation (being the debt arising in respect of receipt of ticket sales) might be capable of being set off against the debt owed to Ticketline from its advances to SSD Music/IG Industries. Mr Mellor put the point as follows:
“we have to stop thinking the ticket money is yours its not legally it’s the customers that you are holding in escrow for the customer will until the show maturity then to the promoter-it’s never Ticketline’s ????”.”
Whether or not Ticketline was obliged hold ticket sale money separately, at the very least it owed a debt to SSD Music/IG Industries in respect of those proceeds unless and until (a) otherwise agreed or (b) on completion of the relevant event, the proceeds (less refunds) being then due to SSD Music/IG Industries, were set off by agreement against sums owing to Ticketline or paid to SSD.

Heads of Terms: 28 July 2022

[140]A draft Heads of Terms (v3) to be made between SSD Music (the “Borrower”), Ticketline (“Lender One”) and “Tokyo Industries [] Limited” (with blank detail under registered number and registered office and being defined as “Lender Two”) (the “HoT”) had been provided by Mr Betesh to Mr Mellor and Steve Davis by email dated 28 July 2022 at 11:58 (ie. before completion of the email exchanges on the Three Options which took place that day). The draft has a typed date of “[] day of July 2022”. Mr Mellor accepted that the proposals there set out were “significantly different” from Option 1 and Option 2 previously set out and discussed in emails.[141]The HoT, among other things, recited at recital one, that SSD Music was the organiser and host of the musical concert and event known as Bingley Weekender (ie the 2022 Festival) (the “Event”), scheduled to proceed on the weekend 5, 6 and 7 August 2022.[142]Recital two confirmed that SSD Music was legal owner of all intellectual property rights associated with the Event and the contracting party with performers and providers of services to the Event (“the Assets”) and was entitled to “all ticket income, proceeds of bar takings and other revenue as generated by the Event less suppliers’ costs” (“Other Revenues”).[143]Recital three was to the effect that Ticketline had, as at the date of the agreement, retained a sum of or about £550,000 of ticket sales and the proceeds of such ticket sales were held in reserve with them pending completion of [the 2022 Festival], defined as “Ticket Sales Revenue” and that further tickets “are and continue to be sold” (defined as “Future Ticket Revenue”.)[144]Recital four was to the effect that the 2022 Festival had cash flow problems and was required to secure further funding, failing which the 2022 Festival would fail. Lender Two was said to be prepared to lend up to £1milllion to manage and complete the 2022 Festival (the “New Loan”).[145]Recital 5 was to the effect that if the 2022 Festival were cancelled, all ticket monies would have to be refunded and SSD Music would be exposed to further and wider financial claims. As such it was not in the interests of the parties to cancel the Event.[146]Recital 6 was to the effect that Lender One recognised and accepted that it would not recover all of its Loan to the Borrower which exceeded the amount of £550,000.[147]Clause 1 provided that SSD Music thereby consents to and Lender Two thereafter would assume conduct and responsibility for completion of the Event, Lender Two paying such reasonable costs as were or may be required to facilitate the opening and completion of the Event.[148]Clause 2 provided that on completion of the Event, Ticketline would agree to pay directly to Lender Two, the Ticket Sales Revenue (also dealt with in clauses 7 and 8).[149]Clause 3 provided that SSD Music authorised Ticketline to pay over any additional sales made from the date of the contract to Lender Two in partial satisfaction of the New Loan.[150]Clause 4 provided that Lender Two would not withhold any reasonable payment required by SSD Music to complete the event and do nothing to cause the Event to be cancelled.[151]As security for the New Loan, SSD Music was, if required, to transfer all rights and entitlement to the Assets to Lender Two (clause 5). As further security SSD Music was to transfer rights of intellectual property and rights of and associated with the Tomorrow Festival to Lender Two (clause 6).[152]Clauses 7 and 8 dealt with payment by Ticketline of Ticket Sales Revenue, on completion of the event, to Lender Two in 6 equal monthly instalments (less any refunds required in consequence of cancellation of all or part of the Event) with interest.[153]Clauses 9, 10, 11, 12 and 13 and dealt with non-competition by Lender Two with SSD Music; confidentiality; continuation of normal trading (of an unidentified “Company” by SSD Music); Advisors (use of and allocation of costs and fees) and Governing Law and jurisdiction.[154]In cross-examination, Mr Betesh accepted that it was envisaged that Mr Mellor would insert into the heads of terms the name of the relevant company that he wished to use in the deal. As such he accepted that the Defence was inaccurate in saying:
“ At all material times, the Defendant believed that the “unnamed” entity [In the heads of terms] was either Mr Mellor himself, or and by consequence of the Non-Disclosure Agreement as entered into between he parties on the 8 July 2022, Tokyo Group Limited as the only communication that was sent to the Defendant was from an email address signed by Mr Mellor himself but deriving from the Tokyo Group email.”
I conclude that the Defence was deliberately put in these terms to counter a case on unjust enrichment based upon (in part) an anticipated contract with the Claimant not having materialised.[155]Perhaps more significant was Mr Betesh’s evidence that the Heads of Terms had been carefully prepared with the benefit of assistance from the same firm of solicitors who acted for the Defendant in the proceedings, Aticus Law.[156]When asked why the third recital to the Heads of Terms was inconsistent with (one could fairly say flatly contradictory to) his evidence and the case put by the Defendant as regards retention of ticket sale proceeds, his answers were variously that he was “trying to get a deal done” and that he didn’t think it was “material”. However, as he also accepted, the recital in effect stated the point that Mr Mellor had made by email dated 28 July (by inserting comments into Mr Betesh’s earlier email). As I have said, in response to Mr Betesh’s comment that “Ticket monies have already paid across” Mr Mellor had replied: “ we have to stop thinking the ticket money is yours it’s not legally it’s the customers that you are holding on escrow for the customer will until the show maturity then to the promoter - it’s never Ticketline’s ???”.[157]As regards recital five, relating to the ticket monies “shall have to be refunded” if the Event is cancelled, this, he said, was also simply “untrue”.[158]As I explain later, I do not accept Mr Betesh’s oral evidence on these points about recitals three and five. Those recitals were, in my judgment, reflective of the true legal position. Although at the time of the draft heads of terms ticket monies may not have been held in escrow it was probably intended that they would be by the time of execution (whether through a loan to Ticketline from Tokyo to enable Ticketline to re-establish an escrow account or through some other route). In any event however, and even if I am wrong about the escrow account point, the refund obligation point remains good. 29 July to 8 August 2022[159]By email dated 29 July at 9:48 Mr Mellor was emailing Mr Betesh saying that ticket revenue from 1 July would be needed to be paid over and that he would not move to the suggested end of July date. As regards heads of terms, he stressed the urgency of a new set of heads of terms being sent over. He asked if Mr Betesh was comfortable with his (Mr Betesh’s) man doing the drafting and whether he was contactable that day. Mr Betesh replied, unhelpfully, that the man was “on holiday so it may be a bit slow but I will get him on it”.[160]However, the 2022 Festival was now due to start in less than a week’s time. Although Mr Mellor had sought to put in place a heads of terms “so we can start paying critical people”, there was no longer time. Starting on 29 July 2022, a batch of invoices were paid (directly or indirectly) in a sum of approximately £320,000. On 2 August 2022 a second batch of invoices was paid by Tokyo (again, directly or indirectly) in a total sum of approximately £260,000. On 4 August 2022 a third batch of invoices was paid by Tokyo in like manner in a total sum of approximately £156,140. On 8 August 2022 further invoices were paid by Tokyo amounting to approximately £9,576. The relevant schedule in evidence, produced by Mr O’Sullivan, shows the payments in total to amount to £746,081 and this evidence was ultimately not challenged. As explained by Mr O’Sullivan, the relevant invoices were all re-issued in Tokyo’s name, they were checked by a number of persons (including Mr Mellor, who approved each payment), payments were processed via Tokyo’s bank account.[161]I am satisfied that at about this time Mr Betesh was well aware that Mr Mellor, through his company, was picking up the tab for SSD and paying (directly or indirectly) artistes and others in respect of payments needed to be made to ensure the 2022 Festival went ahead and that in broad terms he knew perfectly well the sort of financial commitment Tokyo was making. His oral evidence that he knew that Mr Mellor was or would shortly be paying for things (through his company) in connection with the 2022 Festival, but that he did not know at what level is not credible. He, in effect, controlled SSD and had been the source from which Steve Davis had urgently been seeking more funding to let planning go ahead and avoid cancellation of the 2022 Festival. He was constantly getting emails about the 2022 Festival and was negotiating a deal with Mr Mellor which would require him to have kept on top of things as they developed.[162]I accept Mr Mellor’s evidence that:
“ on the basis that we had an in principle agreement I felt we could now proceed and effectively at that moment Tokyo took over from SSD Music and assumed the role of the event organiser of the Bingley Festival. Our communications move into Tokyo taking over the running of the Bingley Festival [and he refers to various contemporaneous emails showing this].”
[163]I also accept his evidence (which as regards what actually happened is borne out by the contemporaneous documents) that:
“For something like this we would usually use a Special Purpose Vehicle (SPV). However as a result of not having the time to, we used Tokyo, then named Tiki-o (Bradford) Ltd, a dormant company in which I owned 100% of the share capital – had the transaction completed I would have used this company to complete the £1 purchase. Tokyo already had a bank account, which meant faster and swifter payments. Without this, for us to set up a new company bank account, it could easily take 3 to 6 months, which would mean the festival could not be funded. Tokyo was also used as it was an entity with no prior liabilities, which made accounting simpler; and Tokyo was already part of the Tokyo group structure, and was therefore a very appropriate entity to proceed with. I made it clear to Mr Betesh and Steve Davis that Tokyo was Tokyo Group’s operating entity in this deal. Invoices would be addressed to and paid by Tokyo. They never expressed confusion or concern at the time. Suppliers were all told to re-address invoices to Tiki-o (Bradford) Ltd i.e. Tokyo for payment and subsequently invoices were sent to and paid by Tokyo.”
[164]I also accept Mr Mellor’s evidence that matters proceeded, not just from Tokyo/Mr Mellor’s perspective but also from the stance taken by Steve Davis and by Mr Betesh that “Option 1” was agreed and it was on that basis that Tokyo took over the running and funding of the 2022 Festival the idea being that the paperwork would, as Mr Mellor expressed in in cross-examination “catch up” later on:
“26. Mr Davis, with the knowledge and approval of Mr Betesh, emailed me a list on 2 August 2022 [reference] setting out the payments needed to book artists and venues for the Bingley Festival. Mr Davis and Mr Betesh were aware that Tokyo was funding payments, it is irrelevant that Tiki-o (Bradford) Ltd was used, I owned 100% of that company and Tokyo Group funded Tokyo to make the payments (Tokyo is Tokyo Group and vice versa); Mr Davis sent them to me for confirmation and invoices were addressed to and paid by Tokyo [reference] I was fully aware of all invoices and payments, Finance would send me an Excel spreadsheet with all payments on which I would then approve (via email response). Although I repeatedly requested formal Heads of Terms urgently after 28 July (we wanted these to pay critical people and to have clarity), Mr Betesh failed to provide them. However, Mr Betesh's acceptance of Option 1 and ongoing communications from Steve Davis (SSD Music's only Director), together with their silence on any disagreements, reinforced my understanding that Option 1 governed our relationship and Tokyo would now run Bingley, cover the costs, and receive the ticket revenue post-1 July 2022 as well as purchase of the shares of SSD. 27. Further emails show that I was now involved in getting the Bingley Festival running and increasing sales, including [reference] trying to increase marketing of the event to boost ticket sales, ensuring that the event would attract enough attendees to mitigate losses. Despite the urgency, Mr Betesh and Steve Davis never objected to Tokyo funding and taking over the organisation of the festival in full. They continued to send requests for payments, treating Tokyo as the de facto event organiser. If they had any issue with Tokyo’s role, they did not voice it. Indeed Mr Betesh failed to even attend any aspect of the festival and Steve Davis only attended very briefly and assumed no control, management or organisation. From 29 July 2022 onwards, Tokyo took immediate steps to salvage the festival. It was Tokyo teams dealing with Police Licensing, SAG (Safety Advisory Groups), festival landlords, the Rugby Club. Tokyo was now the organiser. On 2 August 2022, I emailed Mr Betesh confirming that we were proceeding on the agreed Option 1 and that if, for any reason, it did not proceed, Tokyo would be entitled to the ticket sale revenues and cost recovery. Mr Betesh did not dispute this.”
[165]The 2022 Festival duly took place between 5 and 7 August 2022.

Draft Settlement Agreement 9 August 2022

[166]Meanwhile, Mr Mellor had been chasing a draft heads of terms. By email dated 2 August Mr Betesh emailed Mr Mellor to tell him that the heads of terms had come over to him that day and he had sent it back to be amended. He would let Mr Mellor know as soon as he had them back.[167]I consider that it is fairly clear that Steve Davis, speaking for SSD Music or for the shareholders other than Ticketline or its associates, was aware of the proposed deal and agreed to it (in principle). On 1 August 2022, Mr Betesh sent him an email attaching a paper with the electronic name of SSD Position.docx which he described as something which “protects us from someone challenging the deal with Tokyo” and asking that Steve Davis put in any other information that he thought wad relevant to say that this “is the best investment deal for SSD”. On 2 August Steve Davis replied, sending a revised version and saying that it was “pretty much bang on so have added little.” I should add that emails after the 2022 Festival demonstrate that Steve Davis was also pressing Mr Betesh to honour the deal reached between Mr Mellor and Mr Betesh and give effect to Option 1. This again confirms that Steve Davis, as director of SSD Music and therefore SSD Music was behind and agreeable to the deal.[168]To say, as did Ticketline in further information provided pursuant to a CPR Part 18 request, that neither IG Festivals nor SSD consented to or agreed to the terms of Option 1 as outlined in the Options email was, in my judgment, and at the best, economic with the truth. Mr McGarry submitted that SSD Music was not a party to the current proceedings and Steve Davis had not given evidence. It was, he submitted, not shown that SSD Music had even reached agreement in principle along the lines of Option 1. I disagree.[169]A draft of the position paper was belatedly produced for me in the course of the trial. On its face it is written by Steve Davis “as sole director” of SSD. It demonstrates the knowledge of Mr Betesh regarding SSD’s position and also his de facto control over SSD in drafting a document for its sole director to sign. The penultimate paragraph of the draft document is as follows:
“ Conclusion: I am left with no alternative other than to negotiate terms with Tokyo so that the Bingley Weekender can proceed. I am of the view that this is in the interest of SSD’s creditors.”
[170]Also, by email dated 2 August 2022, Mr Mellor replied to Mr Betesh saying (among other things):
“Thanks for the update Paul. Please send ASAP, I am proceeding on the basis of our deal as agreed. And on the assumption if that cant or doesnt happen for whatever reason then we will need full ticket money and cost recovery for any shortfall as you’d expect.”
He went on to express various concerns about matters emerging at that time.[171]Eventually, by email dated 9 August 2022, Mr Betesh sent Mr Mellor version 5 of a document named “Settlement Agreement”. The covering email referred to the attached “Heads” said to have been drafted up “to best reflect the following agreement and Tokyo’s commitment to seeing through Bingley and the other events that SSD Music currently have on sale for which Ticketline have sold tickets”. Option 1 from the earlier email was then set out on a cut and past basis. Mr Betesh went on to say: “Because of the potential insolvency position of SSD Music, the VAT rebate has been labelled as a 'purchase price’ within the Heads, as a mechanism to fulfil what has been agreed. This in no way changes the terms of Option 1 above just safeguards the VAT”.[172]The August Settlement Agreement was to be made between(1) IG Industries (the “Parent Company”),(2) SSD Music;(3) Ticketline and(4) Tokyo Industries [ ] Limited. It had a its head in typed format “Dated this [ ] day of August 2022”[173]In oral evidence Mr Mellor denied that Mr Betesh was not well aware that it had been Tokyo Industries that had been paying relevant sums on behalf of SSD Music. He accepted that the drafter, Mr Betesh’s “man” did not have the full details and that it would have been for him, Mr Mellor ultimately to confirm the full name of the relevant Tokyo entity.[174]I should also say that Mr Betesh accepted in cross-examination that the terms set forth did not match Option 1 and that he was trying to renegotiate the deal after Tokyo had incurred the costs.[175]The recitals were as follows:
“B. The Parent Company is the sole shareholder of the SSD Music, IG Festivals Limited (11740186) (‘IGFL’) and SSD Venues Limited (11740170) (‘SSDVL’); C. SSD Music is the organiser and host of a musical concert and event known as the ‘Bingley Weekender’ (the ‘Event’) which is schedule to proceed on the weekend of the 5, 6 & 7 August 2022. SSD Music has also commenced the process of sales in respect of other events and as particularised in the attached Schedule (hereinafter referred collectively as ‘Future Events') and from which they have secured revenue (‘Future Events Revenue’); D. IGFL and SSDVL are dormant and are not trading companies. E. SSD Music is the legal owner of any and all intellectual property rights of and associated with the Event and is the contracting party with any and all performers and the providers of any services to the Event itself and is owner of the Intellectual Property of and associated with the Tomorrow Festival (the ‘Assets’) and is entitled to all ticket sale income, proceeds of bar takings and other revenue as generated by the Event less the suppliers’ costs (‘Event Revenue’); F. Ticketline is a company which processes ticket sales for and on behalf of the SSD Music and which has provided, by way of forward funding, a loan to the Parent Company and the Parent Company has in turn, advanced funds to the SSD Music to a sum no less than £550,000 (the ‘Ticketline Loan’); G. Ticketline had sold tickets for the Event to the value of or in excess of £550,000 up and unto the 30 June 2022 (‘Existing Ticket Sales’); H. Ticketline have sold since the 1 July 2022 and shall continue to sell tickets for the Event through and unto its conclusion. (the ‘Future Ticket Sales Revenue’); I. The Event has experienced cash flow problems and is required to secure further funding, failing which, the Event will fail; J. Tokyo is prepared to purchase SSD Music for the sum of £675,000 (six hundred and seventy five thousand) (the ‘Purchase Price’) [This was obviously a change from Option One as originally formulated]; K. Tokyo is prepared to meet those costs and disbursements as are, or may be required, in order to complete the Event. L. If and in the event, the Event is cancelled absent this Agreement, Ticketline will be required to refund the Existing Ticket Sales and SSD Music shall be exposed to further and wider financial Claims from the artists and creditors and it is accepted by the Parties that such conduct will severely damage the reputation of the Parent Company and those other events which are currently being managed by SSD Music, including and in particular, the Tomorrow Festival. As such, it is not in the interest of the parties, to cancel the Event; and M. Ticketline recognises and accepts that it will not recover all of that proportion of the Ticketline Loan to the Parent Company from SSD Music.”
[176]It is significant that the recitals repeat the position regarding Ticketline being liable to refund tickets in the event of cancellation of the 2022 Festival (something Mr Betesh denied in his oral evidence).[177]It is also significant that the draft agreement recognises in terms that the debt owed to Ticketline was technically a debt owed by the parent of SSD Music, not SSD music itself.[178]As regards the body of the Heads of Terms or Settlement Agreement, in summary: (1) Clauses 1 and 2 dealt with Tokyo taking over the conduct of and responsibility for the 2022 Festival and for thereafter paying relevant costs through and to “Completion”. “Completion” was defined as being:
“The conclusion of the musical event on the 7 August 2022 and the payment of any and all costs of and associated with the conduct of the Event and such measures and/or costs as are, or may be, required to satisfy any and all creditors of and as incurred after the Event to return the land on which the Event is conducted, back to its original condition and state”
. It was put to Mr Betesh that clauses 1 and 2 reflected what had already happened and was ongoing. He confirmed that he believed that to be the case. (2) Clause 3 provided that Ticketline was not to be liable to pay to SSD music or Tokyo the Existing Ticket Sales and “such sum shall, as of the date of this Agreement, be utilised to set off as against the Ticketline Loan”. (3) Clause 4 provided that on Completion (I have set out the definition of “Completion” earlier in this judgment) or such other date as may be agreed, Ticketline would pay Future Ticket Sales Revenue to Tokyo (less certain administrative expenses). Clause 5 contained authority from SSD Music to do this. (4) Clause 6 provided that as regards subsequent ticket sale revenue in respect of other events, Ticketline would retain the same and set it off against the Purchase Price of £675,000. (5) Clause 7 dealt with payment of the purchase price of £675,000 to the parent company, in two instalments. The first was £475,000 to be paid once SSD Music received the Existing VAT Claim and the second was £200,000 (or a proportion thereof) from any future VAT claim. (6) Clauses 8 & 9 dealt with the transfer of shares in IGFL, SSDVL, SSDS Music to Tokyo. (7) Clause 10 dealt with cancellation of events. (8) Clause 11 dealt with VAT refunds. SSD Music was said to have applied for a VAT reclaim and to be awaiting a decision on the same. If received then the entirety of that sum was to be paid to IG Industries and then used in partial satisfaction of the Ticketline Loan. A further VAT reclaim was to be made by SSD Music and again that was to be paid to IG Industries in partial satisfaction of the Ticketline Loan. (9) The remainder of the agreement dealt with matters such as confidentiality, continuation of normal trading, advisors’ costs and fees and governing law and jurisdiction.[179]Clause 3, regarding the future (i.e. when the agreement was made) setting off of a debt owed by Ticketline to SSD Music in respect of ticket sales against the loan made by Ticketline to IG Industries is highly significant. It confirms that no set off had yet occurred nor had the obligation of Ticketline to pay ticket sale proceeds to SSD Music otherwise been discharged.[180]When asked in cross-examination about this heads of terms and how it(a) confirmed the liability of Ticketline to refund ticket sale monies to ticket purchasers in the event of the 2022 Festival being cancelled and(b) recognised an obligation on Ticketline to account to or pay over to SSD Music the proceeds of ticket sales for the 2022 Festival, Mr Betesh repeated his position that neither of these stated matters were true. He said, again, that Mr Mellor insisted on these matters as components of any deal and agreement and that he didn’t think it was “worth arguing” over their inclusion. It was put to him clearly and fairly that, in light of his further answers denying that he had mislead his (or Ticketline’s) lawyers, Aticus Law, who had drawn up the various versions of the Heads of Terms/Settlement Agreement, he was saying that they were complicit in drawing up a document containing (according to him) false statements in the respects identified, he confirmed “That is the case”.[181]I should at this point interpose into my contemporaneous chronology, a small part of the chronology of the trial. Shortly after the evidence of Mr Betesh that I have just summarised was given, Aticus Law indicated that it would have to withdraw from the case on the grounds of a conflict. I granted time for the matter to be considered by Aticus Law and by Mr McGarry. The upshot was that Aticus Law kindly agreed to remain and continue to take notes of Mr Betesh’s oral evidence but thereafter they withdrew. Mr McGarry, having considered the matter carefully, felt able to continue to act and in due course did so by way of direct access.[182]On 12 August 2022, Mr O’Sullivan’s team raised an invoice for £119,690 to Ticketline being the amount that they had been told was due from ticket sales after 1 July 2022. This was in line with Option 1 and the Settlement Agreement.[183]On 31 August 2022 Mr Mellor emailed Mr Betesh, Steve Davis and Adam Bolger expressing concern and exasperation that the deal was no closer to being formalised and suggesting that if the parties no longer wished to pursue the deal that hey repay Tokyo the £746,000 odd that it had paid out on the 2022 Festival. The deal either needed to be concluded that week or the £746,000 odd repaid.[184]On 2 September 2022, Mr Betesh said that they were “looking at various options on how to move forward on this” and that they would revert.[185]By email dated 13 September, having chased by email dated 6 September 2022 to no effect, Mr Mellor messaged Steve Davis, Adam Bolger and Mr Betesh:
“Guys this isn’t my battle - I’ve stepped in to save all your asses & worked the whole festival for free You need to agree now to complete on the deal or get me my money back - reneging & keeping the ticket money isn’t possible Please, it’s freshers week now - someone needs to manage these business’s. Get me a secure payment plan to return my £741k or Complete the deal - none of us need this to go nuclear & will tomorrow unless this is resolved”
[186]Later that day, at about 22:00 Steve Davis emailed, apparently, Mr Bolger and Mr Betesh in terms which are significant (especially regards ticket sale proceed refunds and how Mr Betesh treated SSD as “his” (or Ticketline’s)). The first part of that email reads as follows:
“One way or another this needs to conclude. In good faith you agreed to the terms below when Aaron came in at the last minute as you could not cash flow the festival as promised to myself and ssd senior management team. I understand that your circumstances changed due to the court case involving Rob Da Bank and from that I was forced to find the funding to avoid the 707k of refunds and the total collapse of SSD Music Ltd and the holding company you own the majority of. As that was the case I went out to seek someone else to take over the finance of the event and y our shares in the business that Adam asked me and we also spoke about to protect ticketline from 750k + worth of refunds. Aaron stepped in on the terms below and the email you replied to agreeing to option 1. The heads of terms he was provided did not reflect the agreement below and then in turn you haven’t had a heads of terms back so both sides need to sort that out one way or another. To move forward if you are not going to pay anymore of the ticket money over as agreed previously below is it agreeable that this just concludes with Aaron taking the assets and you don’t send the ticket money? We are basically selling the business for 750k to Aaron. If any liquidator questioned that we’d give the good reason we’d have had 750k more debt if we didn’t. It can’t be that SSD is yours to do the deal and then not yours when the deal doesn’t work or why would Aaron be negotiating with you and not me?”
The last sentence is another indicator of the control of Ticketline over SSD and of the fact that SSD accepted the deal negotiated by Mr Betesh In good faith you agreed to the terms below when Aaron came in at the last minute as you could not cash flow the festival as promised to myself and ssd senior management team. I understand that your circumstances changed due to the court case involving Rob Da Bank and from that I was forced to find the funding to avoid the 707k of refunds and the total collapse of SSD Music Ltd and the holding company you own the majority of. As that was the case I went out to seek someone else to take over the finance of the event and y our shares in the business that Adam asked me and we also spoke about to protect ticketline from 750k + worth of refunds. Aaron stepped in on the terms below and the email you replied to agreeing to option 1. The heads of terms he was provided did not reflect the agreement below and then in turn you haven’t had a heads of terms back so both sides need to sort that out one way or another. To move forward if you are not going to pay anymore of the ticket money over as agreed previously below is it agreeable that this just concludes with Aaron taking the assets and you don’t send the ticket money? We are basically selling the business for 750k to Aaron. If any liquidator questioned that we’d give the good reason we’d have had 750k more debt if we didn’t. It can’t be that SSD is yours to do the deal and then not yours when the deal doesn’t work or why would Aaron be negotiating with you and not me?” The last sentence is another indicator of the control of Ticketline over SSD and of the fact that SSD accepted the deal negotiated by Mr Betesh[187]By email dated 19 August 2022, Mr Mellor vented his frustration to Mr Betesh, Mr Adam [Bolger] and Steve Davis:
“ What is happening here please - you absolutely promised me that you would release the ticket sales from 00:00hrs 1 July 2022 to completion immediately after the show on the Monday - we are 2 weeks on. I feel Ive jumped in to save you on this and its really backfired - nothing I was told was correct. The Bars had already been sold to John Adamson for 100k+vat to fund a previous show that had nothing at all to do with Bingley - the costs have come in way more than anticipated. We paid everything that was show critical to make the show happen - but we’ve now all artists and agents screaming for the post show costs - Ive done what I promised I would do and got the show over the line – costing me personally £750k with zero bar income so far. Theres at least another £350k in costs I am not prepared to pay a single penny more until (a) we have the ticket income for all sales post 00:00hrs 1 july 2022 (b) we get this deal completed. To be clear the Ticket Money you need to release today is - All ticket sales that occurred after 00:00hrs 1st July 2022 - The FULL SALES for camping, campervan and parking sales for the entire event (as Camping / Parking is paid to someone else) - Where camping and parking where sold as a package the camping parking element will need to come over for all sales - If any refunds have occurred after 00:00 1st July 2022 but relate to sales that happened pre- 23:59 30 June 2022 must not come from the post 1 July 2022 sales THE FULL & FINAL SALE PRICE OF £746,081 (being the amount paid to talent and suppliers as attached breakdown of costs paid on behalf THE TICKETLINE NETWORK LTD to ensure the BINGLEY WEEKENDER 2022 proceeded and ensuring THE TICKETLINE NETWORK LTD did not have to refund £700k+ of guests and £1m+ talent / production and site did not sue IG INDUSTRIES LTD for its breach of contract. Protecting TNL and IG of further damages in excess of £1.7m THE FULL & FINAL SALE PRICE OF £746,081 IS TO INCLUDE (As Agreed OPTION 1) - 100% share transfer of IG FESTIVALS LTD (Formally SSD CONCERTS & FESTIVALS LTD) for £1.00 -100% share transfer of SSD VENUES LTD for £1.00 - Asset purchase of all assets / IP and any Land rights owned by IG INDUSTRIES LTD (Formally SSD INDUSTRIES LTD) held under the fixed and floating charge for the sum of £1.00. To be clear we are not purchasing the company IG INDUSTRIES LTD this stays owned by The TicketLine Network Ltd to reclaim any future VAT refunds by way of its fixed and floating charge. No way I cant get involved in that - its ‘preference' - you need advice on that - your charge may allow that - it would certainly not allow me to take it and gift it you. The transfer of all shares / assets must complete on or before 31st August 2022 to allow the clean TUPE transfer of all staff and payroll at 1st September 2022. TUPE Consultations on both sides must commence now. Guys to have jumped into this festival and financed it and operated it at 4 days notice was lunacy - but if I had not you would have lost all credibility, value and industries respect - I have kept my part of the deal the festival completed - please not release the Ticket Monies you said you would release today and lets complete this deal as agreed. ACCOUNT NAME TIKI-O (BRADFORD) LTD BANK BARCLAYS PLC [Bank Details] I need the ticket money TODAY to pay the rest of these show costs - if I cant get this resolved I have no option but to tell all suppliers / talent - that these must be paid by SSD as contracted and that Ticketline are holding all the festivals money. This helps no one and just needlessly pisses people off, after we’ve actually done the hard work and delivered the festival. Please send funds today. Please guys Im nervous as hell over this position and we need to close it - Ive agreed this deal with Paul and The Tickeline Network Ltd - we just need to stand on whats been agreed release the ticket money and complete this messy situation allowing us all to move forward. We need to do this quickly. Each day is costing us all serious reputation and financial damage. Please keep to what we agreed and lets close this deal < Option 1 > No Security / No Risk - Immediate Asset Sale. We will purchase all assets, IP and goodwill to inc 100% share capital of IG FESTIVALS LTD + SSD VENUES LTD for £1. You keep all the ticket money up to 1st July 2022 for all events. You pay all ticket sales from 1 July 2022 over on maturity of all events.”
[188]The absence of clear accounting records in terms of identifying not just what sums were paid by Ticketline to the SSD companies but what the legal nature of such payments were is, perhaps, demonstrated by the first paragraph of an email from Steve Davis to Mr Betesh (cc to others at Ticketline) dated 5 December 2022:
“I am trying to work out how it affects our position with ticketline in accounts as in ticket money vs advance sales vs loan. It’s a mess and want to make sure it is left correctly.”

The nature of the loans made by Ticketline and the question of ticket refunds

[189]In his witness statement, Mr Betesh described the “forward funding” which he said Ticketline had provided to SSD Music (or, as evidence showed, to IG Industries) as follows:
“8. It is in effect a loan provided by the Defendant to the promoter. Repayment of the Loan is then repaid, not by fixed monthly payments but by a retention of the ticket sales income generated by the event. Accordingly, the amount paid by a customer in relation to a ticket purchase, is retained by us and set off as against the amount provided to the promotor by means of forward funding. Once the amount of ticket sales exceeds the amount provided by way of forward funding, the ticket sale proceeds are paid onto the promoter.”
It is in effect a loa[190]I find that this account is inaccurate (and therefore misleading) in a number of respects.[191]First of all, the only contemporaneous document setting out any form of agreement between Ticketline and SSD provided for a set-off of only part of the ticket price, SSD’s share of the booking fee. As regards the face value of the ticket price that was to be retained by Ticketline (according to its contract with ticket purchaser in an escrow account) until the event was finalised or the advance by Ticketline to SSD cleared. In the latter event, then Ticketline was supposed to pay to SSD on a weekly basis the ticket price (less rebate) thereafter received.[192]Mr Betesh was confused and contradictory in his explanations of how forward funding operated in relation to Ticketline and SSD Music. At one point in his oral evidence he suggested that “forward funding” only started some years after 2017, but he also referred to the 2017 Agreement as encapsulating and demonstrating forward funding. He also suggested that in the early days Ticketline placed the proceeds of tickets sales into an escrow or client account but that later on it was paid into Ticketline’s office account and then used to make loans. However, by way of counter example, the reply to the request for further information asserted that “The Defendant did not use ticket sale proceeds to fund or facilitate any project. The Defendant provided future funding through realisation of its own profits”. For the purposes of the Claimants claim it does not seem to me to matter whether the loans it made to SSD Music made physically from the proceed sof ticket sales that Ticketline received or from other monies. The key question is whether Ticketline discharged its obligation to pay the proceeds of ticketsales to SSD Music as promoter.[193]There are indications that sums were credited against the overall debt owed to Ticketline by whichever company within the SSD group did so. However, what those credits represent as a matter of legal characterisation is unclear: eg. Whether they record set offs of sums owed by Ticketline, actual receipts of cash or what is wholly unexplained.[194]It is undoubtedly the case that a time came when Ticketline made almost constant advances to SSD. Although physically provided to SSD Music it is unclear in terms of accounting records or contemporaneous written agreement what the legal structure and applicable terms were in relation to such payments. There is no contemporaneous evidence of specific agreements relating to such advances nor as to the terms applying to such payments. The 2017 Agreement does not assist even if it was “carried over” to other companies in the SSD Group, and to other advances.[195]The schedule produced by Ticketline in answer to the CPR Part 18 request purports to show advances said to have been made by Ticketline to SSD. On its face the document suggests that the last time that there was any credit against this account, in terms of a sum received or credited as being received from SSD was on 14 December 2020 (a sum of £7,600.25). The credits immediately before that were £50,000 on 5 November 2020 and two credits of £50,0000 each on 6 and 9 October 2020. Going back in time, the next credit was £124,000 on 8 October 2019. The schedule also shows that sums were apparently being advanced by Ticketline every few weeks, until, in June 2022 funding ceased. In the first half of 2022 the Schedule shows sums being advanced by Ticketline as follows: 30-Jun-22 36,000.00 28-Jun-22 11,387.30 27-Jun-22 51,434.90 23-Jun-22 20,614.80 22-Jun-22 274,401.37 20-Jun-22 8,920.00 31-May-22 80,000.00 17-May-22 103,500 29-Apr.22 40,000.00 05-Apr-22 30,000.00 24-Mar-22 30,000.00 23-Mar-22 5,000.00 25-Feb-22 35,000.00 28-Feb-22 2,995.00 25-Feb-22 4,450.00 18-Feb-22 9,400.00 15-Feb-22 20,000.00 04-Feb-22 7,500.00 26-Jan-22 40,000.00[196]As I have said, by the end of June 2022 the net balance owed to Ticketline is shown on the Schedule as being £9,942,581.46. This would have covered lendings by Ticketline across the entirety of SSD’s events/festivals etc not just the 2022 Festival.[197]I make the following findings based on the limited evidence before me.[198]First, I find that by the end of July 2022, when Tokyo started injecting finds into SSD to ensure that the 2022 Festival went ahead, if not earlier, the advances made by Ticketline were treated as loans to IG Industries, the holding company of SSD Music. It may be, though I probably do not need to decide, that IG Industries was treated as on-lending the same sums to SSD Music, with an obligation on SSD to repay Ticketline. This analysis would entirely fit with the fact that Ticketline took a charge over IG Industries and took control (by way of shareholding) of IG Industries. It is also confirmed by the Heads of Terms. Mr Betesh did not in terms say that the Heads of Terms were incorrect in this respect.[199]There are also loans by Ticketline to IG Industries that were apparently self-standing when originally made and which may not, when made, have been repayable from ticket sales. One specific loan agreement was produced in evidence but at least two others were not. I suspect the following conclusion does not affect the relevant legal analysis in terms of unjust enrichment but I am prepared to assume that all such loans were at some point swept into the running account that I have referred to and that that was an agreement or understanding that all loans made by Ticketline to SSD would (so far as possible) be paid from ticket sales proceeds to which SSD would otherwise be entitled.[200]Secondly, I find that in physical terms, monies received from ticket sales of events promoted by SSD Music were, by January 2022 (if not as lot earlier) immediately used by Ticketline by being paid into its office (or business) account and that the majority if not all of such proceeds were paid on to IG Industries or some other relevant SSD company (probably SSD Music). This seems to fit with the contemporaneous emails from Mr Betesh, though as I have said, even they are something to be regarded with caution.[201]However, such physical payments gave rise to legal consequences and have to be analysed accordingly. Under the informal contractual arrangements in place the starting point was that SSD Music was entitled to the sale proceeds of the face value of the tickets. Leaving aside the question of whether there were any proprietary claims in this respect, there would have been a debt obligation owed by Ticketline to SSD Music (or the relevant promoter) in this respect, as well as an obligation to pay the “rebate”, one half of the booking fee to the promoter. As a matter of informal agreement, it was agreed that Ticketline could set-off, against the liability of SSD Music (or on my analysis and by 2022, IG Industries) to it, the obligation that it owed to the promoter, SSD Music, by way of rebate of the booking fee and the face value of the tickets.[202]However, it was not agreed that this could be done on receipt of the proceeds of ticket sales and nor was there any such set off on such receipt. As is clear for the CPR Part 18 Schedule, there was no reduction in indebtedness to Ticketline by way of credits (by way of set off) being applied to the account between the parties after December 2020 yet tickets were being sold for events, at the least, in 2022. The informal agreement was that set-off would be applied at the end of the festival when financial matters were being wound up or as it is put in the 2017 Agreement on “settlement” of the festival.[203]This analysis fits in not just with the CPR Part 18 Schedule but also with the 2017 Agreement (leaving aside rebates or the promotors 50% share of the booking fee). Under the 2017 Agreement the face value of tickets was to be retained by Ticketline (or put another way, the obligation to pay a sum equal to the face value of tickets to the promoter) did not fall due until either the debt to Ticketline had been cleared OR, at the end of a festival when the financial side of the festival, was wound up. The reasons for such a term are clear. First, on the financial winding up of the festival, a set-off would be available at law to Ticketline against sums owed to it either as a matter of law (assuming the debts owed were owed between the same persons) and/or of agreement (if IG Industries was required to repay advances to Ticketline). Secondly, it would have the consequence that Ticketline would also be reputationally protected because it would be in a position to pay any appropriate ticket refunds.[204]This analysis also fits in with the contemporaneous emails regarding negotiations between Mr Betesh and Mr Mellor. As set out in Option 1, a benefit to Ticketline of accepting the option was that it would retain (or not have to pay out to SSD Music, whether by refunds or otherwise the sums it owed in respect of the proceeds of) ticket sales up to 1 July 2022 but could instead set the same off against the debt SSD had run up with it. Leaving aside sums received from VAT Refunds which were to be paid to Ticketline. “This gets you £500k ticket money +£475k VAT Refund +£200k potential future Vat returns. So circa £1,2m return on your £2.8m write off.”[205]These emails demonstrate that there had been no set-off against the debt owed to Ticketline of the sums owed in respect of ticket sales in relation to the 2022 Festival.[206]I consider that the main differences in the legal agreement reached informally between the parties by 2022 (compared with that in 2017) is that the delay in Ticketline being able to set off obligations against any debt owed to it was extended from the Ticket Price proceeds to include the rebate (being the promotor’s 50% share of the booking fee) and that there could be set off not just between parties who owed obligations inter se but of Ticketline’s obligation to pay the promotor the ticket price and rebate against the obligation of IG Industries to repay the advances that Ticketline had made.[207]If I am wrong about IG Industries being the entity to whom, in law, advances were made by Ticketline and they were as a matter of law made to SSD Music then the overall result is much the same and it does not affect the main issues between the parties.[208]The next issue is refunds.[209]In Ticketline’s answer to a request for further information it was asserted that refunds would only be facilitated if the Defendant received specific instruction from SSD to facilitate such refunds. This seems consistent with the relevant contemporaneous legal documents and Ticketline’s legal obligations to ticket purchasers. However, the answer then continued by asserting that “no such instruction was provided from SSD in relation to this Festival”. This was demonstrably false on the available email documentation. Refunds of ticket prices were made in relation to this Festival and on the basis of confirmation from SSD that such refunds should be made. Mr Betesh was unable to explain how it was that the position had been wrongly stated in the Defendant’s answer to the Claimant’s request for further information. He was also unable to explain why there had not been disclosure of accounting records that he said existed showing such refunds. He was also unable to explain why ledgers or other accounting documents had not been produced showing the accounting position as regards the proceeds of ticket sales in respect of the 2022 Festival. These are further examples of the unsatisfactory nature of Mr Betesh’s evidence and of Ticketline’s compliance with its duty, as ordered by the court, to give disclosure.[210]The only ledger account produced on this issue showed some refunds of over £1.23 million being made between 1 October 2017 and 31 January 2023. It is not possible from this ledger to tell which of these refunds related to the 2022 Festival rather than other events/festivals.[211]Mr Betesh in his witness statement suggested that the ticketing agent (in this case Ticketline) was not under an obligation to make a refund of ticket sales if an event is cancelled or re-arranged. A refund would only be made, he said, if two conditions were satisfied: first that the promoter of the event agreed to the refund and secondly that the promoter refunds the ticket sales to the ticketing agent of the monies paid across (to the promotor). Whilst I accept these propositions, the second is a little economical by way of explanation. The consequences of it is that if the promotor has not been paid across the ticket monies (or e.g. had the benefit of them, by the right to them being set off against some debt owed by the promoter to the ticketing agent) then the ticket agency retains the ticket proceeds and only the first condition stated by Mr Betesh needs to be met, the second not arising. The ticket agency holding the ticket proceeds in this scenario, it would have to refund the same to the ticket purchaser if the promoter agreed.[212]Indeed, this was the way that matters operated according to the terms of the 2017 agreement (in that Ticketline was to set off the rebate against the advance loan but to retain the other sale proceeds of ticket sales until settlement after the event). It is also consistent with the fact that ticket refunds were made well into 2022, although there were no specific sums paid over by SSD to meet such refunds (at least after December 2021).[213]The fact that Mr Betesh was aware of and indeed controlling refunds is confirmed by an email of his dated 8 April 2022 to Mr Davis where he asked Mr Davis to “get the text changed on the website to say Ticketline will be in touch to offer face value refunds ro [sic] give you the opportunity to retain your ticket for next year”. loan provided by the Defendant to the pro In cross-examination Mr Betesh said (as the email headings confirm) that this email related to the “This is Tomorrow” festival, but it negates any suggestion that as a generality refunds were not generally taking place and that Mr Betesh was not fully in control of that policy.nf[214]By letter dated 12 March 2025, Ward Hadaway LLP, solicitors for the Claimant, sought disclosure in relation to refunds of tickets for the 2022 Festival and other events. As Mr Betesh confirmed in cross-examination, absolutely nothing was disclosed in response to this letter.[215]In summary, there was a clear obligation upon Ticketline to refund if(a) SSD Music directed or agreed that there was to be a refund and(b) either Ticketline was put in funds OR Ticketline had retained the ticket proceeds in the sense of not having discharged its obligation to pay them over to SSD Music (which could include I suspect, a discharge by set off).[216]Mr Betesh’s repeated statements (contemporaneously and in evidence) that there was no obligation on Ticketline to make refunds because it had not retained the ticket sale proceeds and that that they had been paid to SSD Music missed the point. Physically the money that had come from ticket sales may well not have been physically retained and it may have been paid to SSD Music. However, the payment to SSD Music was not in discharge of the obligation to account for or pay over a sum equal to the ticket sale proceeds to SSD. It was a new legal transaction giving rise to a new obligation on SSD (or IG Industries) being an advance or loan of monies to SSD/IG Industries which that entity had to repay.[217]There is little doubt that it lay in SSD Music and Ticketline’s interests to refund monies if circumstances in which refunds arose under the terms and conditions of sale of tickets properly arose. There is clear evidence that in fact refunds were being constantly processed and paid over by Ticketline, without SSD having to pay over sums equal to such refunds to Ticketline, and this just demonstrates the general points that I make and the analysis and conclusion that I have reached. In short, there was a contingent liability upon Ticketline to refund ticket prices and that contingency was highly likely to arise.Furthermore, and in my judgment, in the event of cancellation of the 2022 Festival, the obligation to refund tickets, assuming SSD Music so authorised it, would have arisen before any ability of Ticketline to seek to set off the same against debts owed to it. That is because refunds would have arisen as part of the 2022 Festival process before taking net positions and working out settlement as between SSD Music and Ticketline. So far as necessary I would also find that the economic reality was that Ticketline would have had to refund tickets before seeking to set those proceeds off against debts owed to it by SSD Music (or IG Industries). This also flowed from its contract with ticket purchasers, the entirety of relevant obligations in this respect requiring it to have kept ticket monies in an escrow account (which in fact it seems not to have done).[218]I turn to the involvement of Tokyo and Mr Mellor.[219]As I have said it is now accepted that Tokyo paid out some £746,081.00 in directly or indirectly meeting various costs and expenses of the 2022 Festival which SSD Music would otherwise have had to meet but which it did not have the funding. Had Tokyo not provided finance at the very last minute as it did, the 2022 Festival would not have gone ahead and would have had to be cancelled.[220]It was also accepted in cross examination of Mr Betesh that in effect Tokyo funded the entirety of the 2022 Festival. Although Ticketline was lending SSD money up until 30 June 2022 it seems likely that some at least of the later payments were used to fund other events (such as a Diana Ross concert that took place in 2022).[221]It is also clear that Mr Mellor, and therefore Tokyo, proceeded on the basis that there was a deal as set out in Option 1 of the three options that he put forward. That basis of proceeding was shared by Mr Betesh, Ticketline and SSD and Steve Davis. Of course, that might be subject to further amendment by agreement and Mr Betesh, having agreed to Option 1, then constantly asked for variations to Option 1. He accepted for example that the Heads of Terms he caused to be produced did not in fact match Option 1. Nevertheless, it is perfectly clear that both Ticketline and Tokyo proceeded on the basis that a binding agreement would be produced giving effect to Option 1 (with any variations as further agreed). Mr Betesh accepted in terms Option 1 even though in his acceptance he asked whether Mr Mellor would vary Option 1. I am satisfied that the “deal” or agreement in principle was Option 1. I do not accept the submission that Option 1 was not agreed because Mr Betesh made counter suggestions after he had said that he accepted (and he thereby accepted) Option 1.[222]Although Mr Mellor had specified a binding head of terms as a pre-condition of the provision of funding, that did not materialise in the available time nor in due course. Despite Mr Mellor continuing to insist Option 1 was given effect to, Mr Betesh in effect refused to do so. Although the key terms of Option 1 were agreed, it was also agreed that this was in effect “subject to contract” so no binding agreement was ever entered into.[223]Mr McGarry submits that Mr Mellor and Tokyo essentially took the risk that a contract giving effect to Option 1 would not be entered into and that there is no room for a restitutionary remedy as a result. I shall have to consider this area of fact in more detail in the context of the requirements of a restitutionary remedy. For present purposes it is enough to say that I find that Mr Betesh was well aware that Mr Mellor through Tokyo was providing funding on the basis that a deal had been done on the terms of Option 1. The reason that heads of terms were not agreed before the funding commenced was because(a) of the immediate need for funding if the 2022 Festival was to be saved and(b) because of delays by Mr Betesh in actually producing first, any heads of terms and secondly, heads of terms that embodied Option 1.[224]The next issue that I turn to is the relationship between Ticketline (and particularly Mr Betesh) and SSD.[225]It was submitted by Mr McGarry that Ticketline did not take control of SSD. In particular, he pointed to contemporaneous emails on SSD Music operational matters to which Mr Betesh was not a party, as sender recipient or as person copied in. He also referred to an email sent by Mr Betesh to Steve Davis on 4 October 2023 in the course of a number of emails the gist of which is that Steve Davis was complaining about alleged non-performance of promises made by Mr Betesh and/or that he and other shareholders (in IG Industries) had been misled when they handed shares over to Mr Betesh/Ticketline. The overall context was Mr Davis encouraging Mr Betesh to give effect to the agreement in principle that he had reached with Mr Mellor in July 2022. The relevant email from Mr Betesh contains an assertion as follows:
“ I took control of the company because it was insolvent, I was owed a huge amount of money along with several other creditors. I had said that I needed to take control in order not to put the company into admin. You were given several weeks to raise money to avoid this happening, but were unsuccessful. You never actually gave me the control that you agreed to. The offer was that if money was paid back from ticket sales and debt reached a manageable level the bulk of the shares would be returned.”
[226]As regards the absence of Mr Betesh as a party to certain operational emails, it may be that Mr Betesh did not obtain the level of control that he either wanted and/or thought he was going to get at operational level. However, an absence of day-to-day control is not the same as “no control”. It may be quite common for a board of directors of a company not to be involved in day-to-day operational matters without it being said that they are otherwise than in control of the company and in respect of significant decisions. .[227]The email of 4 October 2023, when battle lines had already been drawn, demonstrates the general point that there was control, albeit not in his view the level of control that had been agreed. The terms of the email itself takes matters little further forward as they do not explain what that level of agreed control over detail was agreed (or being referred to).[228]In my judgment, Mr Betesh did have both legal (through an 85% shareholding in the parent company that wholly owned SSD Music) and de facto control over SSD Music so far as any deal with Mr Mellor was concerned. His actual involvement in, for example, setting website terms and conditions is one example of an actual exercise of control. The other is his dictating the terms of a document for the director of SSD Music to sign as a justification for SSD Music entering into and agreeing to Option 1. It is also demonstrated by the absence of negotiation between Mr Mellor and Mr Davis but instead the communications about the deal being between Mr Mellor and Mr Betesh (and/or those acting for him/Ticketline) and, for example, Mr Betesh’s production of heads of terms to which IG Industries and SSD Music were to be parties. There was no suggestion that in some way SSD Music and/or IG Industries were independent and there would need to be a separate negotiation with them before the heads could or would be executed by all parties.[229]In my judgment it is perfectly clear from the factual evidence that the consent of SSD Music and IG Industries to the deal done over Option 1 was in place.[230]Whether the benefits conferred on Ticketline gives rise to a claim in unjust enrichment is a matter that I will come onto. However, as a matter of factual evidence, and/or inferences to be drawn from that factual evidence, I am satisfied that it has been established that the benefits to Ticketline of the sums paid by Tokyo in connection with keeping the 2022 Festival running included(a) the ability to set off its obligation to pass to the organiser ticket monies against the debt owed to it (which, had Tokyo not paid the relevant sums, it would not have been able to do but would have had to used the ticket sale proceeds to refund customers;(b) the ability in like way to (a), to set off the sum it was obliged to pay SSD music as regards rebates (i.e. the 50% of the booking fee);(c) (as admitted by Mr Betesh) reputational damage flowing from a collapse of the festival (which might include reputational damage flowing directly from (a) and/or an insolvency of SSD Music and IG Industries (especially if that resulted in artistes and suppliers to those companies or either of them not being paid)(d) avoidance of formal insolvency of SSD Music and IG Industries and the retention of a major interest in those companies, such companies having an ongoing business and intellectual property rights and other assets of value.[231]In particular, I am satisfied on the balance of probabilities that without the payments made by Tokyo in connection with the 2022 Festival from July 2022 onwards the 2022 Festival would have been cancelled and that one consequence of that would have been that Ticketline would have had to find the money to refund ticketholders.[232]Finally, the claim in unjust enrichment has been limited to a claim equal to the sums that it is said that Ticketline benefitted from in terms of sale proceeds of ticket sales for the 2022 Festival, that benefit is said to be the face value of the tickets sold and the one half of the booking fee (the rebate) otherwise payable by Ticketline to SSD.[233]The sums realised by ticket sales for the 2022 Festival was pleaded in the Particulars of Claim as being £707,717 in respect of ticket sales. SSD’s share of the booking fee in respect of such sales was pleaded as being 50% of the 10% booking fee, being £35.385.85. This was based on a schedule provided by Ticketline and SSD forming annex 2 to the Particulars of Claim. The response in the Defence was that the ticket sale proceeds (being the entirety of the sale proceeds less any refunds) were £600,878. No disclosure or no adequate disclosure seems to have been given by the Defendant on this issue, Nevertheless, as I understand it, the Claimant is prepared, for reasons of practicality, to accept the figure put forward in the Defence. On the basis of ticket sales of £600,878, the booking fee would have been 10% or £60,087.80. Tokyo limits its claim as regards the booking fee received by Ticketline to the rebate (equal to 50% of the booking fee) to which on the face of the agreement between Ticketline and SSD, SSD would have been entitled and which, as a result of the 2022 Festival going ahead and refunds not being paid, Ticketline had the benefit of and was able to set off against any debt owed to it by SSD. I did not understand Ticketline to dispute the figures finally relied upon by Tokyo as arising as regards the ticket process and the booking fee (and the rebate).

Unjust enrichment

[234]It was common ground that the claim to unjust enrichment in this case should be answered by following the approach of Lord Steyn in Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, 227, and ask:(a) Has the defendant been benefitted in the sense of being enriched?(b) Was the enrichment at the claimant’s expense? (c)Was the enrichment unjust? (d) Are there any defences? (see also e.g. Samsoondar v Capital Insurance Co Ltd [2020] UKPC33 at paragraph [18] per Lord Burrows). The burden of proving the first three lies on the Claimant. The burden of proving defences lies on the Defendant.[235]As the Supreme Court has stressed in Investment Trust Companies v Revenue & Customs Commissioners [2017] UKSC 29; [2018] AC 275 paragraphs [38] to [42] (and I summarise):(1) the law of unjust enrichment is based on rules of law which are “ascertainable and consistently applied”. It is not a label enabling the court in the individual case to decide what is just or unjust, fair or unfair as if the court had a discretion in the matter;(2) The doctrine of precedent continues to apply even though the concept of unjust enrichment as “a unifying principle underlying different types of claim” may be a fairly recent phenomenon and the principle may still be in the course of development;(3) Lord Steyn’s four questions are no more than “broad headings for ease of exposition”. They enable a structured approach to the analysis of unjust enrichment. However, they do not embody legal tests but rather “signposts to areas of inquiry” and one cannot apply Lord Steyn’s words as it they were words of a statute,(4) In carrying out relevant legal analysis, it is important to have at the forefront of one’s mind the purpose of the law of unjust enrichment. It is “designed to correct normatively defective transfers of value, usually by restoring parties to their pre-transfer positions.”

Has the Defendant benefitted in the sense of being enriched?

[236]Although various forms of financial enrichment were identified by Mr Stubbs, at the end of the day the form and quantity of financial enrichment relied upon for the purposes of founding a claimed remedy of disgorgement is that of the ticket money proceeds of the 2022 Festival, both of which Ticketline would not have retained (but been obliged to pay to SSD) had the 2017 agreement applied and there been no other considerations. I can therefore ignore potential arguments about whether Ticketline was enriched by retaining its reputation and whether there were other financial benefits obtained by Ticketline as a result of the 2022 Festival being saved by Tokyo (such as ownership, indirectly, of (if it was) a profitable and ongoing SSD business).[237]As regards the particular benefit in question, at the end of the day and on proper analysis, it seems to me that Tokyo’s argument is that by the sums it paid out (pursuant to a proposed agreement which did not materialise), a situation was avoided under which(a) the 2022 Festival was cancelled and(b) thereupon Ticketline would have had to refund the ticket price to ticketholders (or those that had purchased tickets). Instead, Ticketline was saved from having to make the refunds and was placed in a position where it could set off those sums against sums owed to it by SSD. For the reasons that I have already given, I consider that both proposition (a) and (b) are made out. I should add that, depending on the point at which one assumes that without the capital injection from Tokyo the festival would have had to be cancelled, it may be that some proceeds of ticket sales amount to enrichment of Ticketline not on the basis that they would have had to be refunded but on the basis they would not have been earned if the 2022 Festival had been cancelled earlier.[238]As regards the first point, Mr McGarry in his written closing submissions confirmed:
“12. …the common ground is that by mid-July 2022, the Bingley Festival required a significant cashflow injection of anything towards £1 million in order to meet costs to completion. 13. It is not in issue that the Claimant met these costs, and that the costs identified as paid within Annex 1 to the particulars of claim were costs associated with the Bingley Festival…”
[239]As regards the second point, I have analysed earlier in this judgment why I consider that Ticketline was obliged to refund the costs of tickets. In effect that flowed from the relevant contractual relationships and the fact that Ticketline had not discharged its obligation to pay SSD ticket sale proceeds. Although ticket sale proceeds as received by Ticketline may have been paid over to SSD that was pursuant to a loan arrangement and, in SSD’s hands such monies were a loan not the proceeds of ticket sales. No set off was possible until settlement of any festival and in fact no purported set off had been made by the time of the deal that was done between Ticketline, SSD and Tokyo.[240]However, the rebate (50% of the booking fee) falls into a different category. The booking fee was not something that had to be refunded to ticket purchasers. It was, it seems to me, only the booking fee that was earned after the deal was done (or, possibly, after Tokyo started pumping money into the 2022 Festival) that Ticketline was enabled to earn (and retain or set off against loans to SSD) the booking fee (and the 50% of it otherwise at the end of the day payable to SSD) by the payments made by Tokyo. In other words, as regards the booking fee received prior to the deal with Tokyo, Ticketline had received the same and it was available (in due course) to set off the rebate part against any obligation to Ticketline by way of repayment of loans by SSD. The fact that the festival was not cancelled by reason of the injection of sums by Tokyo did not affect booking fees already received but simply allowed further sales (and booking fees) to be received that would not otherwise have been received.[241]A point was taken by Mr McGarry that the case had only been properly pleaded by way of the Reply. Mr Stubbs submitted that the claim was properly pleaded in the Particulars of Claim and that the Reply simply provided further particulars. As Mr McGarry confirmed, Ticketline had fought the case on the basis that this case (possibly among others) was being advanced. Had the point been taken earlier, and it was a good one, I would have permitted amendment of the Particulars of Claim. I do not consider therefore that I need spend time on an arid debate as to whether the claim was or was not adequately pleaded in the Particulars of Claim and whether a pleading in the Reply was inadequate.

Was the enrichment at the Claimant’s expense?

[242]On this aspect Mr McGarry relied heavily upon the Investment Trust Companies case. He submitted that the benefit in this case was indirect (and did not consist of property in which the claimant has or can trace an interest) and that it did not fall within any of the examples of a situation where the parties had not dealt directly with one another or with one another’s property (see paragraphs [46] and [47] of the Investment Trust Companies case) but where the difference from direct provision of a benefit by the claimant to the defendant could be said to be “more apparent than real”, such as agency, assignment or sham (see paragraph [48]) and co-ordinated transactions (see paragraph [61]-[66].[243]In my judgment, the answer to Mr McGarry’s point is that this is a case where Ticketline and Tokyo (and as I have held SSD) reached a deal which was understood on all sides to be directed precisely at(a) avoiding Ticketline having to make refunds of ticket sale proceeds and(b) thereby enabling it to be allowed to retain (as the deal provided for) the proceeds of ticket sales up to 1 July 2022; it being agreed that Tokyo would receive the proceeds of ticket sales from 1 July 2022 onwards.[244]In this case the parties did deal directly with one another and negotiated that Tokyo should provide funding for SSD specifically so that SSD did not have to cancel the 2022 Festival and Ticketline could retain the ticket proceeds (in effect equivalent to a set off against the debt owed by SSD) and gift part of them to Tokyo. This was not an incidental consequence but a directly intended consequence that materialised (except that Ticketline retained all of the ticket proceeds) as a result of Tokyo paying the monies out that it did. As such it seems to me that the benefit was direct (or that difference from the direct provision of the benefit is more apparent than real). The benefit was not an incidental consequence of the funding of the 2022 Festival by Tokyo, it was the main (or one of the main) purposes of the deal. Further, it did not form a separate transaction, it flowed immediately from the laying out of funds by Tokyo.[245]Accordingly, I am satisfied that in this case the identified benefit was as a result of:
“the provision of something for the benefit of some other person with no intention of making a gift, that the defendant should have received some form of enrichment, and that the enrichment has come about because of the loss.”
Lord Clyde in the Banque Financiere case ([1999] 1 AC 221 at 237) discussed at paragraph [44] of the Investment Trust Companies case.

Was the enrichment unjust?

[246]The alleged injustice relied upon is the “failure of basis” upon which Tokyo paid the relevant sums to or for SSD Music. I was referred to a number of cases and a number of passages in Goff & Jones on Unjust Enrichment (10th edition). I did not understand the general principle to be contested. At paragraph 16-01 it is stated as follows (footnotes excluded):
“ 16-01: Where benefits are transferred in anticipation of a contractual agreement which is intended to provide for payment for those benefits, and the contractual agreement does not materialise, the general principles of failure of basis apply. The same principles that govern liability where the contract is void or unenforceable would seem to be equally applicable where the contract does not come about. As Barry J commented in William Lacey (Hounslow) Ltd v Davis [[1957] 1 WLR 932 at 939]: “I am unable to see any valid distinction between work done which was to be paid for under the terms of a contract erroneously believed to be in existence, and work done which was to be paid for out of the proceeds of a contract which both parties erroneously believed was about to be made.””
[247]Mr McGarry submitted that the case failed primarily because: .(1) There was no shared basis which failed because whilst the parties envisaged there would be some contract they were never sufficiently ad idem as to what the terms of the contract would be. It is insufficient for there to be a shared basis that there will be some contract, the parties must have failed to enter into a contract ion the basis of shared understanding as to what the contract would be.(2) There was no shared basis because SSD Music (one of the three proposed parties to the contract) had no shared basis and it is unclear that it understood and/or agreed to Option 1;(3) The Claimant took the risk of the deal not being reflected in a written document binding the parties: there is no injustice in there being no restitutionary remedy;(4) There is no total failure of consideration because Tokyo did obtain some rights regarding the annual Bingley festival because it (or Mr Mellor and/or other companies within the Tokyo group controlled/operated it in 2023.[248]As regards the first two points of Mr McGarry, it follows from what I have already said that I disagree with them. First, Option 1 was clear and was agreed to. Mr Betesh tried (almost constantly) to chip away at what had been agreed and to vary the agreement but Mr Mellor always stood firm. The key point is that Mr Betesh agreed in terms to Option 1. As regards the involvement of SSD Music (and I would add IG Industrials, though Mr McGarry did not refer to the latter company in this context), it is clear from my findings that SSD Music was aware of what had been agreed between Mr Mellor and Mr Betesh (i.e. Option 1) and that it would join in the legal documentation to give effect to Option 1. IG Industries was even more directly controlled by Mr Betesh and the same findings apply to it.[249]As regards the issue of “subject to contract”, Mr Stubbs denied that the deal was subject to contract. I do not agree with his analysis in this respect. Although the magic “subject to contract” formula was not used it is clear that the parties intended the agreement to be embodied in formal legal documentation. The position is similar in this respect to the position in the case of Cobbe v Yeoman’s Row Management (where a claim in restitution did succeed) where the parties could be taken to have known that oral contracts for the sale of land (as they had entered) were unenforceable. Indeed, if in this case there was a binding agreement (rather than an agreement which was not binding) it is not clear to me that there could be a failure of basis claim in restitution.[250]Mr McGarry relied upon the well-known dicta of Rattee J in Regalian Properties Limited v London Docklands Development Corporation [1995] 1 WLR 212 that, by entering negotiations that were expressly subject to contract, each party: “[M]ust be taken to know..that pending the conclusion of a binding contract any cost incurred by him in preparation for the intended contract will be incurred at his own risk in the sense that he will have no recompense for those costs if no contract results”.[251]As Goff & Jones points out, even if Regalian is correct, it does not follow that there will never be a claim in restitution in respect of any benefit conferred on a Defendant at the expense of a Claimant where there is a shared basis at the time (or a that a specific contract will be entered into in valid legal form). Whatever the precise limits of the principle stated in Regalian in this case the benefit conferred by the Claimant arose from the Claimant performing its side of the putative contractual obligations, not mere “preparatory works” to put it in a state to do so. Further, that performance was a performance that was made in circumstances where emails from Mr Mellor made absolutely clear that the payments were not being made gratuitously and at Tokyo’s risk of a contract did not materialise. Further, as I find, the payments were made at the encouragement of Mr Betesh/Ticketline supported by statements, as asserted by Mr Mellor in evidence and which I accept, that he was told at the time that he need not worry about the delay in production of the heads of terms (initially because, it was said, Mr Betesh’s lawyers was away on holiday) because there was an agreed deal.[252]In this context, Mr McGarry relied on Mr Mellor’s agreement in cross-examination that he had taken a risk in proceeding without an agreement being formally signed off by way of appropriate legal documentation. However, in my judgment that answer has to be considered in context. What Mr Mellor was saying was that he accepted the risk that there might not be a legally binding agreement entered into. Obviously if there had been one, there would be no need for claims in restitution. The risk accepted was the risk of there being no legally binding agreement not an acceptance that in the event there was no legally binding agreement then Tokyo would have paid the relevant sums gratuitously with no recourse at all. Indeed, the contemporaneous emails show very clearly that was not the risk that Mr Mellor accepted.[253]As regards the total failure of consideration point, this was not pleaded nor the subject of disclosure. It is based on Mr Mellor’s evidence in cross-examination that in fact Tokyo (or a Tokyo company(ies), the position was not pinned down), had been in control of the 2023 festival at Bradford. He did not enlarge upon the legal position in this regard. Nor did he deal with the crucial question of whether, and if so how and when, Tokyo received any of the relevant consideration that it would have received under the agreed “deal” (which I understand is said by Mr McGarry to be intellectual property rights relating to the festival, otherwise to be transferred to Tokyo under Option 1). The fact of the 2023 Festival must have been well-known to Ticketline and, if that was the case, that it was not operated by SSD. In the circumstances I am not prepared to allow this case to be run and, in any event, do not accept that, on the balance of probabilities, Ticketline has established that there was not a total failure of consideration because some of the intellectual property promised to be transferred to Tokyo under Option 1 was in fact transferred. It is unclear to me that there was such a transfer or, if there was, that it was not transferred at a later date under some separate contract/arrangement.[254]No defences to an unjust enrichment claim were raised. It follows that the unjust enrichment claim succeeds regarding the enrichment that I have identified.

Fiduciary claim

[255]In light of my conclusion on the claim in restitution I do not need to deal with the claim based on an alleged breach of fiduciary duty by Ticketline into accounting to Tokyo, in its capacity, as permitted by SSD and indeed Ticketline. as organiser of the festival, for the proceeds of ticket sales. It is said that once Tokyo took over management and organisation of the 2022 Festival, Ticketline was its agent, owing it fiduciary duties and that it failed to account to Tokyo for the ticket proceeds (and the rebate). The difficulty with this is that whatever the position might have been had the deal been concluded by way of binding legal documentation, embodying Option 1, Ticketline owed contractual duties (and possibly, although this is contested, fiduciary duties) to SSD. It is difficult to see how these were replaced by fiduciary duties to account to Tokyo, when SSD Music remained the relevant promotor and Tokyo was, in effect, assisting SSD Music in carrying out the day-to-day organisation and paying the bills.

Conclusion

[256]It follows that the claim in restitution succeeds as regards the ticket price proceeds of £600, 878. There will need to be agreement (or further argument and possibly evidence) as regards the element of the rebate (with regard to time of receipt) in relation to which the claim succeeds. There is also an issue as to whether and if so, what interest should be applied.[257]In handing down a draft of this judgment I invited the parties to agree, so far as possible and before formal hand down of this judgment, a draft order which(a) gave effect to this judgment and dealt with consequential matters and(b) to the extent that such an order could not be agreed, set out a timetable for relevant submissions and the bringing back of the matter before the court. I have helpfully been provided with such a draft order with some points that were not agreed but which the parties invited me to resolve on the papers without a further hearing. For the reasons I set out in the order as approved by me, I make the further order as invited to, resolving the remaining issues in dispute. In summary, judgment is entered for the sum of £605,503.75 in damages, plus interest in the sum of £117,709.92. A total of £723,213.67. The Defendant is ordered to pay the claimant’s costs, with a payment on account.