Concourse Initiatives Ltd v Maiden Outddoor Advertising Ltd [2005] EWHC 2995 (Comm)

Claim No. 2004 Folio 788

[2005] EWHC 2995 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

COMMERCIAL COURT

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

Date 20 December 2005

Before

MR RICHARD SIBERRY QC

sitting as a DEPUTY HIGH COURT JUDGE

Between

CONCOURSE INITIATIVES LIMITEDClaimant

- and –

Between

MAIDEN OUTDOOR ADVERTISING LIMITEDDefendant

Mr Michael Fealy (instructed by Herbert Smith LLP) for Concourse Initiatives Limited

Mr Tom Weisselberg (instructed by Olswang) for Maiden Outdoor Advertising Limited

Hearing Hearing dates : 9, 10, 11, 14 and 15 November 2005

Judgment

Introduction

[1]The Claimant, Concourse Initiatives Limited (“Concourse”), is a former sales agent of the Defendant, Maiden Outdoor Advertising Limited (“Maiden”). In these proceedings Concourse claims commission allegedly due to it under a Sales Agency Agreement between the parties dated 8 January 1999 (“the Agency Agreement”), and damages for the allegedly wrongful termination of the Agency Agreement by Maiden with effect from 30 September 2004.

[2]Concourse’s claim for commission falls under five heads:(1) Concourse claims £XXX, being its alleged entitlement under the Agency Agreement to a 31.5% share of the sum of £XXX, the gross sum which Associated Newspapers Limited (“ANL”) committed to Maiden that it would spend on advertising through Maiden in the first year of an agreement dated 20 May 1999 between ANL, Railtrack PLC (“Railtrack”) and certain train operating companies (“TOCs”), and Maiden, by which ANL was given rights, for an initial period of three years from 20 May 1999, to distribute a free newspaper called “London Metro” (subsequently called simply “Metro”) at stations in and around London controlled and/or operated by Railtrack or the TOCs in question;

(2) Concourse claims £XXX, being its alleged entitlement to a 25% share of £XXX, the gross sum which ANL committed to spend on advertising through Maiden in the first year of an agreement dated 1 February 2000 between ANL, Railtrack and Maiden, by which ANL was given rights for an initial period of three years to distribute free provincial versions of Metro at stations controlled and/or operated by Railtrack;

(3) Concourse claims £XXX, being its alleged entitlement to a 31.5% share of sums paid or payable to Maiden in respect of the period from 20 May 2002 to 30 September 2004, pursuant to a commitment made by ANL to spend £XXX gross on advertising through Maiden in each year of an agreement dated 15 April 2002 between ANL, Railtrack, Maiden and its parent company The Maiden Group PLC (“Maiden Group”), by which ANL was granted rights to distribute Metro at Railtrack stations in and around London for a further ten-year term in direct continuation of the 20 May 1999 agreement;

(4) Concourse claims £XXX, being its alleged entitlement to a share of £XXX paid to Maiden pursuant to a so-called “Buy-Out Agreement” dated 31 March 2005 between ANL, Railtrack (by then renamed Network Rail Infrastructure Limited) and Maiden Group, by which Maiden’s rights under the agreement dated 15 April 2002 were bought out by ANL;

(5) Concourse claims an £XXX share of the sum of £XXX paid by ANL to Maiden in connection with an agreement between Scotrail Limited (“Scotrail”) and ANL granting ANL distribution rights at stations operated by Scotrail.

[3]Maiden has denied that Concourse is entitled to any commission in respect of ANL expenditure on advertising pursuant to the various ANL agreements, or in respect of the £XXX paid to Maiden Group under the Buy-Out Agreement, or of the £XXX Maiden received from ANL in connection with its Scotrail distribution deal. Alternatively Maiden contends that Concourse’s claims have been incorrectly calculated, in that claims (1) – (4) fail to take account of agency commission, and claim (5) has been calculated at the wrong percentage rate.

[4]On 23 August 2004 Maiden gave Concourse written notice to terminate the Agency Agreement with effect from 30 September 2004. It was Maiden’s case that Concourse had, for some time prior to that, been on notice that the Agency Agreement would terminate on that date, that written notice was not required, but that if it was, the 23 August 2004 notice constituted reasonable notice of termination, and that in any event the Agency Agreement expired by virtue of the express and/or implied terms thereof on 30 September or 1 October 2004.

[5]Concourse for its part accepted that the Agency Agreement was terminable on reasonable, written, notice. However it disputed that reasonable notice had been given, whether in writing or at all, or that the Agency Agreement expired by virtue of its express or any implied terms on 30 September or 1 October 2004. Concourse contended that in the circumstances that prevailed at the time the 23 August 2004 notice was given, a reasonable notice period would have been no less than 6 months. Accordingly it claimed damages for wrongful termination, in the sum of £136,587, calculated by reference to Concourse’s net revenue under the Agency Agreement for the years 1999 – (July) 2004.

[6]Further to an application made on behalf of ANL on 8 November 2005, the day before the trial was due to commence, Aikens J directed, pursuant to CPR Rule 39.3(c), that the trial should at least begin in private, due to that fact that it would or might involve the revelation of commercially confidential information that might have a prejudicial impact on competitive tendering processes in which ANL was or might become involved, and that there did not appear to be any practical alternative means of regulating the conduct of the trial so as to avoid disclosure of such information, at any rate without undue disruption to the trial process. At the commencement of the trial, and having considered the papers before Aikens J on that application, I ordered that the trial should continue in private.

[7]This judgment is, however, given in public, but in redacted form, following a further application by ANL that it should, for the reason indicated in the previous paragraph, either be given in private, or be given in redacted form, with various figures blanked out. Neither of the parties opposed the delivery of the judgment in redacted form. Copies of the judgment in unredacted form have been made available to the parties and to ANL, with “£XXX” substituted for monetary sums and “XXX” for certain other confidential matter.

[8]The trial took place over 5 days, commencing on 9 November 2005. Concourse was represented by Mr Michael Fealy, instructed by Herbert Smith LLP. Maiden was represented by Mr Tom Weisselberg, instructed by Olswang. I am indebted to both counsel for the clarity of their written and oral submissions.

[9]Concourse called Mr Alan Greaney and Mr Michael Kehoe to give oral testimony. Both Mr Greaney and Mr Kehoe had been directors of Concourse since its incorporation in December 1997. Mr Greaney was the director responsible for the general management of Concourse. He was for most of the relevant period primarily responsible for the sales side of the business, while Mr Kehoe was primarily responsible for the accounting side of the business, although by mid-2004 Mr Kehoe had more involvement on the commercial side. The background of both of these gentlemen was in accounting, though Mr Greaney also had a law degree, and Mr Kehoe had married into the law, as his wife is a partner at Herbert Smith LLP.

[10]Maiden called Mr Roger Fernley, who had been the managing director of Maiden Transport, a division of Maiden, since 1995, and had responsibility for managing the railway concessions held by Maiden. Maiden also called Mr Donald Gray, the circulation director at the Metro division of ANL, who had originally joined ANL in February 1999 to advise on the launch and distribution of the Metro newspaper. In addition Maiden submitted witness statements from Mr Daniel Gollins, since January 2003 Financial Manager and since January 2005 Financial Controller at Maiden; from Mr Stephen Ames, who had worked until recently for Network Rail, and before that as commercial manager at Railtrack; and from Mr Steven Corney of Maiden’s solicitors Olswang, who gave evidence of a telephone interview and follow-up email exchange with Mr Ames. None of Messrs Gollins, Ames and Corney was required by Concourse for cross-examination. The facts Background, the Advertising Agreement, and the First Exhibition Agreement

The facts

[11]Concourse was (as already mentioned) incorporated in December 1997. Together with its sister-company Media Initiatives Limited (“Media Initiatives”) it became a wholly-owned subsidiary of Media Initiatives Group Limited (“Media Group”), when that company was incorporated as a holding company in October 1998. The business conducted by these companies is that of a diversified media agency, and includes online advertising and “ambient media” advertising – that is, advertising beyond traditional media, on sites such as litter bins and shopping trolleys. Messrs Greaney and Kehoe have been directors of Media Initiatives since 1994, and of Media Group since October 1998.

[12]Maiden’s business is the exploitation of advertising and other promotional opportunities at “outdoor” sites, including roadside panels, stations, supermarkets and shopping malls. Maiden’s involvement in railway advertising began in 1995, when it acquired British Transport Advertising Limited (“BTAL”), to which the British Railways Board had previously granted a concession to manage and promote the sale of advertising space at British Rail properties. After Railtrack had taken over the rail network and the management (as well as the ownership) of certain key stations including the London mainline terminals, and the TOCs had taken over the management of other stations within their respective franchised areas, Maiden obtained concessions from Railtrack for advertising and other promotional activity at Railtrack stations, and also from certain of the TOCs to conduct such activities at stations they managed. Relevant details of these agreements are set out below.

[13]I should mention at this point that after Railtrack’s parent company Railtrack Group PLC was placed into Railway Administration in October 2002, its assets, including the shares in Railtrack, were subsequently transferred to Network Rail Limited. Railtrack changed its name to Network Rail Infrastructure Limited in February 2003. However for convenience it was referred to at the trial (and in most of the witness statements) simply as Railtrack, and I shall do likewise.

[14]It is, as Maiden emphasised and Mr Fernley explained in his evidence, important to distinguish three forms of promotional activity that take place at stations. First, there is advertising by way of fixed visual displays, by means of posters or digital screens – so-called “transvision screens”. The evidence was that advertising space at such sites is generally booked for periods of between two weeks and a year. Secondly, there is distribution, whereby floor space is booked inside or outside a station for the distribution of printed material, such as leaflets, magazines or newspapers. Distributions are generally booked by the day. Thirdly, there are exhibitions, whereby floor space is booked for the promotion of a product or brand (often by means of a demonstration or handing out of a product sample, and occasionally involving the signing up of new customers, for example to a mobile phone network). Exhibitions usually run for a maximum of one week. Commuters to London mainline stations will have experienced all three kinds of promotional activity.

[15]By an agreement dated 23 September 1997 between Railtrack, Maiden, and Maiden Group (“the Advertising Agreement”), Maiden was granted by Railtrack the exclusive right, among other things, to manage and promote the sale of advertising on advertising space and sites at stations owned and managed by Railtrack (“the advertising concession”), and to manage and exploit the distribution of certain publications free to the public from authorised locations within stations owned and managed by Railtrack (“the distribution concession”), for the period from 1 January 1999 to 1 October 2004. The net revenue from these activities was to be shared, 50% to Railtrack and 50% to Maiden. Maiden was obliged to make an advance payment to Railtrack of £1,750,000, and Maiden Group was required to guarantee Maiden’s performance up to £5million. Railtrack was obliged (by service of notice no later than 1 October 2000) to extend the term of the Advertising Agreement until 1 October 2007 if Maiden met certain key performance indicators. Maiden was authorised to sub-contract the performance of any of its obligations under the Advertising Agreement to any person it considered fit, though it was to remain responsible to Railtrack for the actions and defaults of any subcontractor.

[16]Media Initiatives was interested in becoming involved in arranging commercial distributions and exhibitions on Railtrack stations. Mr Greaney contacted Maiden, where his primary contact was and remained Mr Fernley, with whom he had a good working relationship, and developed a friendship which lasted until the events surrounding termination of the Agency Agreement. Mr Fernley told Mr Greaney that Maiden had been awarded the advertising and distribution concessions at Railtrack stations, and also that Railtrack was putting out to tender a further concession to exploit commercial exhibition rights at stations. Mr Fernley also said that although Maiden wanted to bid for this further concession (to prevent a competitor building a relationship with Railtrack that could threaten Maiden’s advertising rights), Maiden did not itself wish to do the work necessary to exploit any exhibition rights. Maiden was not a specialist in either exhibitions or distributions – its main expertise lay in advertising. Mr Fernley told Mr Greaney that if Maiden was awarded the exhibition concession, it would be happy to hand over to Media Initiatives, as Maiden’s agent, the exploitation of both that and the distribution concession. Maiden would continue to handle the work associated with the advertising concession itself.

[17]Media Initiatives assisted Maiden in preparing Maiden’s tender to Railtrack for exhibition rights at Railtrack stations. Maiden’s tender was submitted on 5 November 1997. And a new company, Concourse, was incorporated by Messrs Greaney and Kehoe, to exploit the exhibition concession if awarded to Maiden, and the distribution concession, as Maiden’s agent, on terms to be agreed.

[18]In December 1997, Railtrack awarded the exhibition concession to Maiden, and on 1 January 1998 Concourse began to act as Maiden’s exclusive agent in exploiting both the exhibition concession and the distribution concession, though there was until early the following year no written agreement between Maiden and Concourse recording the terms of this exclusive agency.

[19]By an agreement dated 19 November 1998 between Railtrack, Maiden, and Maiden Group (“the First Exhibition Agreement”), Maiden was formally granted by Railtrack the exclusive right to manage, promote and exploit Commercial Exhibitions (as defined therein) at identified stations owned and managed by Railtrack for the 5-year period from 1 January 1998 to 31 December 2002. The net revenue from these activities was to be shared, 60% to Railtrack and 40% to Maiden. Maiden guaranteed Railtrack a minimum revenue in the first year of £1million. Concourse was identified and accepted in the First Exhibition Agreement as Maiden’s sub-contractor. Maiden Group was required to guarantee Maiden’s performance up to £10 million. Railtrack was obliged to grant Maiden an extension of the contract term until 30 September 2007 if Maiden achieved certain sales targets.

[20]Maiden also had exhibition and distribution rights at a number of stations outside London that were operated by TOCs. Mr Fernley and Mr Greaney agreed that Concourse’s exclusive agency would extend to those TOCs, and over the course of Concourse’s work as Maiden’s agent, Concourse carried out exhibition and distribution work at such TOC stations. In the event Concourse was Maiden’s exclusive agent in respect of exhibitions and distributions at stations managed by Railtrack and a fluctuating number of TOCs for almost 7 years, until 30 September 2004.

The Agency Agreement

[21]The Agency Agreement between Maiden and Concourse was finally concluded in early 1999. It is dated (as was an earlier draft thereof) 8 January 1999. Both Mr Greaney and Mr Kehoe had stated in their respective first witness statements that it was signed on 8 January 1999, but when asked in chief whether there were any corrections to be made to their respective statements, each said that it was signed after that date, though neither could remember exactly when. I am satisfied that the Agency Agreement was not signed on 8 January 1999, but I find that it was probably only a few days later that its terms were finally agreed and that it was signed.

[22]The Agency Agreement, in which Maiden was referred to as “the Company” and Concourse as “the Agent”, began with the following recitals, headed “Background”:

“The Company, under a contract with Railtrack Plc, is granted rights to manage and exploit commercial exhibition stands at Railtrack Major Stations (“The Contract”) In addition, under a contract with Railtrack Plc, the Company is granted rights to manage and exploit distribution at Railtrack Stations. Under other contracts granted to the Company by Train Operating Companies, similar rights are granted to the Company in respect of commercial exhibitions and distribution at their properties and railway stations. Whilst maintaining its position of Principal to these contracts, and having primary obligation for the fulfilment of all obligations under these contracts, Maiden wish to enter into an Agreement with the Agent, for the Agent to exclusively market, sell, produce and administer exhibitions, promotions and distributions whether by hand or by any other means.”

The Railtrack contract referred to in the first paragraph of these recitals was the First Exhibition Agreement. That referred to in the second paragraph was the Advertising Agreement (though Concourse did not see a copy of this until after the present proceedings were commenced).

[23]By clause 1 of the Agency Agreement, Maiden granted Concourse “exclusive rights ….. to market, sell, produce and administer commercial exhibitions and distributions ….. at locations specified in the attached schedule, together with additional locations which may from time to time be agreed and added in accordance to this agreement”. Neither party was able to locate the “attached schedule” (if indeed it ever existed), but it was agreed that nothing turned on this.

[24]Clause 2 provided that the term of the Agency Agreement was (subject to reduction in accordance with other terms thereof) to be five years from 1 January 1998 – that is, a period expiring on 31 December 2002, the date on which the term of the First Exhibition Agreement was due to expire unless extended.

[25]Clause 8 of the Agency Agreement provided for a sharing between Concourse and Maiden of the revenues obtained in exploiting exhibition and distribution rights at Railtrack and TOC stations. It read as follows: “Net Revenues shall be defined as the addition of all gross revenues less agency commissions actually paid and at rates which are recognisable as those prevailing in the market including any directly related other revenue, and will be divided as follows: Where the Company contract is based on a 60% of revenue payment to Railtrack or TOC - 18.5% Maiden - 21.5% Concourse Initiatives Where the Company contract is based on a 50% of revenue payment to Railtrack or TOC - 18.5% Maiden - 31.5% Concourse Initiatives Where any Company contract is above 60% payment to Railtrack or TOC then any revenues after payment to Railtrack or TOC will be split in the proportion 31.5/50 Concourse Initiatives and 18.5/50 Maiden.” [my emphasis] The First Exhibition Agreement was based on a 60% revenue payment to Railtrack, so that Concourse was entitled under clause 8 to 21.5% of Net Revenues (as defined) in respect of exhibitions at Railtrack stations while that Agreement remained in force. The Advertising Agreement was based on a 50% revenue payment to Railtrack, so that Concourse was entitled under clause 8 to 31.5% of Net Revenues in respect of distributions at Railtrack stations while that Agreement remained in force. There was an issue as to the proper construction of clause 8 and in particular of the words I have emphasised, the resolution of which is central to Concourse’s claims to agency commission allegedly due under the Agency Agreement.

[26]Further material terms of the Agency Agreement included the following: Clause3 “All obligations of The Contract [sc. The First Exhibition Agreement] are binding upon the Company, and shall be made known to the Agent, and shall be as equally binding upon the Agent and as if the Agent were the Company.” Clause 9 “The revenue shares defined in 8 above shall not vary for the duration of this agreement unless agreed by both parties. Any such revenue share negotiations will not be used by either party to frustrate the contract or to stop it running its full term.” Clause 10 “Revenues due to The Company shall be payable 70 days after the month end in which the agent issue the invoice. The agent will not be liable for any bad debts where they have taken reasonable steps not to incur the bad debt or to recover the bad debt.” Clause 17 “The Agent shall invoice promotional clients representing the Company as Principal to these sales contracts.” Clause18 “Should the Company terminate this agreement for any reason whatsoever during the term of the contract or should the Agent terminate the Contract [in this instance, clearly a reference to the Agency Agreement] under clause 31.2 below, the Company will pay the Agent their commission based on clause 8 above for all future business booked, any business optioned which subsequently is contracted or any renewable business which is subsequently renewed during the original term of the contract set out in clause 2 above. Payment is to be based on the whole term of the renewal and will not be limited to the term of this contract as defined in clause 2 above and clause 9 will not be applicable. For the avoidance of doubt this will include any sales contract or sales contract renewal where the original contract gives the advertiser the right of renewal on any terms whatsoever or any other advertiser who takes over that contract through the procedures laid down in that contract. Nothing in this clause will restrict the agents rights to take any other action it deems fit on termination by the Company or termination of the Company’s contracts by Railtrack or TOC’s.” Clause 22 “The Agent shall not without the prior written approval of the Company accept sales in respect of any Stand which after the deduction of all costs would result in a loss to the Company. Following the first three months operation of this Agreement the Company may terminate this agreement giving one month’s written notice to the Agent should revenue receipts fail to cover guarantee payments to Railtrack under the contract over a cumulative 6 month period.” Clause 23 “The Agent shall conduct its obligations in a proper and professional manner, maintain adequate numbers of staff at all times to fulfil contractual obligations and maximise performance……” Clause 24 “The Company shall have the right to terminate this Contract, on giving not less than one months notice in writing to the Agent (and allowing the Agent an opportunity within one calendar month to remedy any breach) if the Agent has failed to carry out its obligations under this Agreement; or immediately and without any remedial period if the Agent breaches any Safety regulation laid down and made know to the Agent and which forms part of the Company’s obligations under the Contract; or upon change of control of the Agent; or immediately upon the appointment of a liquidator, administrator or receiver by the Agent; or by less than 3 months written notice, (not before the first 2 years of this Agreement has been fulfilled), where in the Company’s view performance by the Agent in terms of generating budgeted revenue, and observance and implementation of all laid down procedures and regulations of operation covering the Contract, is considered by the Company to be unsatisfactory. The view taken by the Company of the Agent’s performance, shall not be unreasonably constructed …..” Clause 30 “For the duration of this agreement the Agent shall not instigate discussions with either Railtrack or the Train Operating Companies in order to compete with the Company for the rights to manage and exploit commercial exhibitions and distributions at their railway stations without the written agreement of the Company. The Agent reserves the rights to have discussions with Railtrack or the Train Operating Companies when the matters being discussed fall outside the scope and intention of this agreement, or the Company’s contract is terminated by Railtrack or any TOC, or the Company is put on notice that it’s contract is to be terminated by either Railtrack or TOC’s.”

Background to and conclusion of the First ANL Agreement

[27]It was common ground that the Agency Agreement was entered into at a time when the parties had in contemplation the prospect of a deal being concluded for the grant by Railtrack to a newspaper publisher of rights to distribute a free newspaper at Railtrack stations. Such distribution rights would fall within the scope of the Advertising Agreement, of the informal arrangements between Maiden and Concourse whereby Concourse had acted as Maiden’s exclusive agent in respect of distribution at Railtrack and TOC stations since January 1998, and of the Agency Agreement when eventually concluded, as I have found it was shortly after 8 January 1999.

[28]In April 1998, Mr Greaney had first raised with Mr Fernley the possibility of selling the right to distribute a free newspaper at railway stations. In December 1998/January 1999, Mr Greaney contacted both ANL and News International Limited (“NIL”) and enquired of them whether they were interested in purchasing the right to distribute a free newspaper at stations operated by Railtrack and various TOCs.

[29]Following discussions between Concourse, Maiden, and each of ANL and NIL, ANL and NIL each submitted bids to Maiden for the right to distribute a free newspaper. NIL corresponded with and discussed its offers directly with Mr Fernley, whereas all bids submitted by ANL were addressed to Mr Greaney of Concourse, as Maiden’s agent. In an offer addressed to Mr Fernley on 28 January 1999, NIL (in combination with Metro International) offered £1.2 million a year, with indexed annual increases, for 10 years for "exclusive rights to distribute free publications on all station property and on commuter trains in London and the South East, at all times of day and for each day of the week". This offer was subject to a number of conditions.

[30]ANL’s opening bid, by letter dated 29 January 1999 addressed to Mr Greaney of Concourse, was limited to six specified Underground stations operated by Railtrack or TOCs.

[31]In a further offer addressed to Mr Fernley on 2 February 1999, NIL increased its offer to £1.5million a year (indexed) for 10 years for free publication distribution rights. NIL stated that it believed the total value of the offer to be over £5 million. The offer was again subject to a number of conditions.

[32]By letter dated 4 February 1999, Mr Fernley reported to Mr Ames of Railtrack on the expressions of interest that had been received from six publishing groups, including ANL and NIL. His conclusion was that at that stage the firm proposals that had been made were too low, and other proposals, including ANL’s, too informal.

[33]In February 1999 Mr Greaney met with Messrs Gray, Neil Jagger and Thomas Grahl of ANL. Following that meeting, Mr Murdoch MacLennan, the Managing Director of ANL, wrote to Mr Greaney on 19 February 1999, seeking confirmation of his understanding on a number of key points, including the following:

“- The agreement will cover all stations in any area specified by ANL, eg. inside the M 25 plus the 10 biggest London commuter stations outside the M 25. - The agreement will provide exclusive distribution rights for free newspapers/magazines at these stations. - The duration of any agreement will cover a period no longer than until October 2004…. ….. - Although a wholly cash bid is preferable your company will also consider a bid consisting of cash and other benefits.”

Mr Greaney passed this letter on to Mr Fernley, who duly confirmed broad agreement to Mr MacLennan’s points, in a fax which Mr Greaney forwarded to ANL.

[34]Thereupon by letter dated 23 February 1999 addressed to Mr Greaney, ANL submitted its first formal offer for the distribution rights of free newspapers/magazines on mainline stations. ANL offered to commit to a three-year contract with an option to renew. The letter continued:

“This contract would have a monetary value of £XXX of which £XXX would be paid in year 1; £XXX in year 2 and the balance of £500,000 in year 3. [ANL] will provide significantly discounted advertising for Railtrack and the Train Operating Companies during the life of this contract in both the Evening Standard [also published by ANL] and London Metro. Subject to agreeing reasonable rates, [ANL] will work with Maiden….to increase its advertising expenditure to promote its titles at railway stations.”

This offer was contingent on, among other things, agreement on distribution points.

[35]Following conversations between Mr Greaney and representatives of ANL, on 25 February 1999 Mr MacLennan wrote again to Mr Greaney, increasing ANL’s offer to £XXX for 3 years for the distribution rights (payable as to £XXX each year) – an increase of £XXX over the 23 February 1999 offer. This revised offer was expressed to be conditional on prompt confirmation that Media Initiatives and Maiden would recommend the offer to the parties involved, that is, Railtrack and the TOCs. Mr Fernley replied directly to Mr MacLennan on the same date, stating: "I can confirm that I am now in a position to exclusively recommend your offer to Railtrack and the Train Operating Companies and will do this as a matter of urgency".

[36]Mr Fernley duly wrote to Mr Ames at Railtrack the following day, setting out details of the latest NIL and ANL offers. Although NIL had offered a 10-year deal, it was only prepared to commit for 12 months from launch, with 6 months’ rolling notice thereafter; it wanted distribution rights after 10 am, which would have put it in competition with ANL’s newspaper The Evening Standard, and caused complications in relation to retail deals in place between Railtrack, W. H. Smith Limited and The Evening Standard. In contrast, London Metro was intended to be distributed to work-bound commuters, and Mr Fernley highlighted the advantage of a minimum contract period of 3 years, with £XXX payable in advance each year, total £XXX. He added (with reference to one of the points of Mr MacLennan’s 23 February 1999 letter) that ANL was “keenly interested in supporting the new product with advertising and exhibition and product promotional support which will add revenues at both Railtrack and TOC stations.” Accordingly, and as he had told Mr MacLennan he would, Mr Fernley recommended to Mr Ames that the ANL offer be pursued.

[37]On 2 March 1999 Mr Fernley wrote to Mr Tom Turcan, Head of Business development at NIL, indicating that he felt unable to recommend the NIL offer as it was inferior to that received from another party. Mr Turcan replied by return, stating that he was perplexed by Mr Fernley’s letter, and adding that Mr Fernley had said on 15 February that he intended to recommend the NIL offer. He wrote that NIL would be prepared to discuss the proposed length of the contract term, and to deposit 25% of the first year’s fee on exchange of a formal memorandum of understanding. He indicated NIL’s "commitment to this project" and urged that "there is still plenty to discuss before reaching a final conclusion".

[38]Mr Fernley responded on 4 March 1999, reiterating that NIL’s minimum period of contractual financial commitment was inferior to that offered from elsewhere, and that there were serious reservations about NIL’s proposed afternoon/evening distribution. His letter did not dispute Mr Turcan’s statement that he, Mr Fernley, had said he was going to recommend the NIL offer, though his evidence was that he had said no such thing. It was submitted on behalf of Concourse that it is inherently probable that Mr Fernley would have been quick to correct any such mistake on the part of Mr Turcan, and that in the absence of any such correction, I should find that Mr Fernley had indeed told Mr Turcan that he would recommend the NIL bid. It is not necessary for me to reach a conclusion one way or the other on this point, as it is clear that from 2 March (if not before) Mr Fernley was telling NIL that its bid was inferior to another. What is clear is that, although I find that Mr Fernley did believe the ANL offer was superior to that of NIL, he told Mr Greaney that it was important to establish a clear distinction between the two bids so that ANL would emerge as the clear winner.

[39]To that end Mr Greaney encouraged ANL to increase the value of its offer, but was told by Mr Kevin Beatty of ANL that ANL could offer no more, as its management had set a limit to the amount it would be prepared to spend for distribution rights, and the bid had reached that budget limit. Mr Greaney had the idea that he could increase the value of ANL’s offer by persuading ANL to purchase advertising from Maiden at Railtrack stations as part of the deal for the grant of distribution rights. Advertising came from a different budget at ANL. In the week commencing 1 March 1999, he put this idea to Mr Fernley, who agreed that he should suggest it to ANL.

[40]Thereupon Mr Greaney telephoned Mr Beatty, and told him that ANL's offer was inferior to that of NIL, but that ANL could improve its offer by adding a commitment to purchase from Maiden advertising to a value of £XXX at Railtrack stations. Mr Beatty said he would consider this, but five minutes later he rang back and said, “You’ve got a deal”.

[41]At about the same time Mr Fernley discussed with Don Gray at ANL the need for ANL's offer to be structured so that payment was more front-loaded to the first year of its proposal. Mr Greaney made the same suggestion to Mr Gray in a letter dated 2 March 1999.

[42]Further to the exchanges described in paragraphs 40 and 41 above, on 4 March 1999 Mr Beatty of ANL wrote to Mr Greaney making an improved offer. In that letter, he stated, among other things, as follows:

“As a result of the recent telephone conversations you have had with Thomas Grahl and Don Gray, I confirm that [ANL] will amend its offer for the distribution rights of free publications on mainline stations as follows:- During the 3 year contract the annual payments will be: - £XXX in year 1; - £XXX in year 2; - £XXX in year 3. … I also confirm [ANL’s] intention to spend £XXX (gross) on poster advertising in mainline train stations during the first year of the contract. This advertising will be booked through ANL’s normal media buyer.”

This improved offer thus included both the suggested front-loading of the annual payments, and the advertising spend commitment discussed in the course of the telephone conversation between Messrs Greaney and Beatty. The latter was, as Mr Fernley accepted, a major advance from ANL’s 23 February 1999 indication that it would work with Maiden to increase its advertising expenditure at railway stations, and was part of the “clear water” that distinguished ANL’s offer from that of NIL.

During the 3 year contract the annual payments will be:

[43]Non-binding Heads of Agreement between Maiden and ANL were signed on 19 March 1999. These provided, among other things, that “…ANL will use reasonable endeavours to honour the statements made in Murdoch MacLennan’s letter of 23rd February 1999 to Media Initiatives to the extent not already dealt with in these Heads of Agreement.” That was the letter which had expressed ANL’s interest in supporting the new product with advertising. However, the Heads of Agreement made no express reference to ANL’s 4 March 1999 offer to spend £XXX on advertising in the first year. In his letter of 19 March 1999 returning signed copies of the Heads of Agreement to Mr MacLennan, Mr Fernley assured Mr MacLennan that “Maiden have at no time acted without integrity and have at all times honoured the words and commitments made to your representatives.”

[44]By a fax dated 22 March 1999, Mr Greaney stated to Mr Fernley, among other things, as follows: “Given the excitement and trauma’s of recent weeks I thought it might be useful to take time out and clarify some of the points that have been verbally agreed between ourselves. The current offer from Associated Newspapers, which is now subject to the heads of agreement signed by Maiden and Associated Newspapers, is for a total of £XXX over 3 years. This is split £XXX in year 1 and £XXX in each of the subsequent years. In this instance the Associated offer includes £XXX of advertising spend in the first year. To avoid any confusion the advertising spend element of the offer was suggested and negotiated by Media Initiatives. It was purely a mechanic to increase the overall Associated offer by suggesting they divert spend in other areas to strengthen their financial offer. It is therefore accepted that this spend is subject to our normal percentage agreement for distributions.” [my emphasis] The fax also referred to an agreement between Concourse and Maiden regarding the revenue split on a deal with Connex, and to Concourse’s acceptance that revenue under the proposed deal with ANL would (in contrast with the procedure agreed pursuant to clauses 10 and 17 of the Agency Agreement) be invoiced and received in the first instance by Maiden, who would transfer to Concourse its appropriate share. There was no written reply from Maiden to this fax.

[45]It was Concourse’s case that money spent by ANL on advertising through Maiden pursuant to the deal that was eventually concluded for the distribution of Metro was indeed subject to the Agency Agreement percentage split applicable to distributions, on a proper construction of clause 8 thereof. Concourse did not seek to argue that this 22 March 1999 fax referred to any separate agreement or understanding between the parties, of a binding nature, as to the treatment of such advertising spend. It relied on the fax as showing that Mr Greaney believed on 22 March 1999, not only that ANL’s offer was worth £XXX over three years, but also that Maiden had agreed to pay Concourse commission thereon, and that Concourse has held that view since 1999. This was partly in rebuttal of a forensic point made on behalf of Maiden that a claim for commission on such advertising spend had only been advanced after the Agency Agreement had been terminated.

[46]Mr Fernley was adamant, in his evidence, that there had been no such separate agreement or understanding. Although he accepted that the other two points mentioned in the fax had indeed been agreed, he denied that he had ever agreed that the advertising spend was to be subject to the percentage split agreed for distribution revenue. On the contrary, he said in the course of cross-examination that he responded verbally to the fax, and I understood him to indicate (albeit not very clearly) that he would have refuted the suggestion that Concourse was entitled to commission on any advertising revenue. He agreed that there was no written response until 2 August 1999. I am not satisfied that Mr Fernley did orally refute any of what Mr Greaney had said in the fax of 22 March 1999.

[47]It is convenient to deal at this point with the letter from Mr Fernley to Mr Greaney dated 2 August 1999, to which I have just referred. In this letter, Mr Fernley wrote:

"I meant to say the other day it really is important that Concourse have wider contracts than just me inside Maiden. It would do Concourse good to be more involved and I am sure you have wanted this as well. Now that we have a new Agreement it would be ideal for Concourse to present what else it may carry out in the ambient area. Our new Agreement will not cover this. I know we refer to directly related services but this only covers services related to exhibitions – staffing, research or whatever else we may develop in promotions. It doesn't cover advertising or ambient and we will need to talk about a new agreement and deal to cover off items such as ambient at shopping malls etc. Anyway, more when we talk next time."

Mr Fernley’s evidence was that this letter was in part his written response to Mr Greanley’s assertion, in his 22 March 1999 fax, that it was accepted that the advertising spend in connection with the ANL deal (if concluded) was subject to the parties’ “normal percentage agreement for distributions”. If it was, it dealt with the subject in a very oblique way. The statement “I know we refer to directly related services” was an inaccurate reference to clause 8 of the Agency Agreement, but the focus of the letter seems to be ambient advertising. Mr Fernley was unable to explain exactly what had prompted him to send this letter, but I am satisfied it was not prompted by a desire to respond to Mr Greaney’s fax sent over four months previously, or to indeed to any subsequent discussion that may have taken place about Concourse’s alleged right to a share in ANL advertising spend. I am not satisfied that there had in fact been any such discussion.

[48]In any event neither the fax, nor any verbal response or discussion there may have been, nor Mr Greaney’s letter of 2 August 1999, can affect the issue I have to determine as to the proper construction of clause 8 of the Agency Agreement.

[49]Picking up the story again in March 1999, ANL’s lawyers drew up a draft contract, which was forwarded to Maiden for comment. That draft, like the Heads of Agreement, was silent on ANL’s proposal to spend £XXX on advertising. On 29 March 1999, Mr Fernley wrote to Mr Grahl of ANL, raising various drafting points, including the following (at paragraph 11):

“Your payment clause ignores a fundamental point of your offer, to spend £XXX gross in additional and incremental advertising support to the Metro and to Associated Newspapers Limited titles, additional expenditure not already committed or planned. I take this omission as an error. If it is not then we have a serious problem with comparisons against other bids.” [my emphasis] Mr Fernley’s evidence was that this last sentence was untrue, as the ANL bid was, even without the advertising commitment, superior to NIL’s offer. He said he was anxious to extract as much value as possible from ANL, and was using what he euphemistically described as “artistic licence” in suggesting that there was a serious problem with comparisons with other bids if the advertising commitment was not included in ANL’s offer, because in truth, as he put it, “the ANL deal was done, at the values of the distribution deals, in terms of the front loading, in terms of the guarantee payment”

. He rejected the suggestion, put to him in cross-examination, that it was his view at the time that there was indeed a serious problem with the ANL offer if the advertising commitment was not included. My conclusion is that he was telling me the truth when he admitted that the last sentence of the paragraph I have quoted was untrue.

[50]Without commenting on paragraph 11 of Mr Fernley’s 29 March 1999 letter, on the following day Mr Greaney provided some additional comments on the draft, including the request that Media Initiatives (sic) should be a party to the contract in view of the exclusive Agency Agreement “which in effect does not allow Maiden to sell any space”. Further drafts followed.

[51]One of the results of Mr Fernley’s letter of 29 March 1999 was that it was agreed by Maiden, Concourse and ANL that the proposed £XXX advertising spend commitment would be dealt with in a side letter from ANL to Maiden, as an alternative to making reference to the commitment in the main contract with Railtrack. The first draft side letter, provided by ANL to Messrs Fernley and Greaney under cover of a fax dated 21 April 1999, was in the following terms: “We refer to the Agreement entered into today between us and the Principals (as defined in the Agreement) in relation to the distribution of the London Metro at the Principals’ stations. We confirm it is our intention during the term of the Agreement:(a) subject to competitive rates, to spend £XXX gross (including agency commission payable to our contracted media buyer) in the first year of the Agreement on advertising through you in respect of our products; and

(b) to offer discounted advertising to the Principals in the London Metro and Evening Standard, the discount being subject to advertising volumes to be negotiated. The above is a statement of current intent and shall not be legally binding.” (a) subject to competitive rates, to spend £XXX gross (including agency commission payable to our contracted media buyer) in the first year of the Agreement on advertising through you in respect of our products; and (b) to offer discounted advertising to the Principals in the London Metro and Evening Standard, the discount being subject to advertising volumes to be negotiated. A revised draft side letter in slightly different terms was sent by Mr Grahl of ANL to Mr Greaney on 23 April 1999, but this draft, like the first, ended by stating that the advertising spend commitment was not legally binding.

[52]This qualification was deleted in a third and final draft sent by ANL to Mr Greaney on 4 May 1999, and it was in that form that a side letter was eventually signed. This took the form of a letter from ANL to Maiden dated 19 May 1999 (“the Side Letter”), signed on behalf of ANL by Mr MacLennan, which read as follows:

“We refer to the Agreement entered into today between us and the Principals (as defined in the Agreement) in relation to the distribution of London Metro at the Principals’ stations. We agree to spend £XXX gross (to include agency commission payable to our contracted media buyer) in the first year of the Agreement on advertising through you in respect of our products. We shall be entitled to, and our commitment is conditional upon, our receiving discounts and rates equivalent to the most competitive offered to other advertisers committed to this level of advertising spend.”

[53]ANL’s lawyers intended that the Side Letter and the agreement for the grant of distribution rights should be executed at the same time, but in fact the latter was not signed until the following day. It took the form of an agreement in writing dated 20 May 1999 (“the First ANL Contract”) between ANL, Maiden, Railtrack and three TOCs (together referred to therein as “the Initial Principals”), but to which it was contemplated that other TOCs might sign up (as some subsequently did). By the First ANL Contract, ANL was granted the right to distribute a free newspaper called the London Metro at stations in and around London operated by Railtrack and subscribing TOCs (together "the Principals"). It was for a term of three years from 20 May 1999. ANL agreed to pay Maiden as agent for the Principals the sum of £XXX plus VAT, in three annual instalments: £XXX upon signature, and £XXX on each of the first and second anniversaries of the First ANL Contract (in each case plus VAT). These sums were duly paid, and Concourse has been paid by Maiden its 31.5% share of such payments.

[54]Mr Fernley accepted that he regarded the proposed advertising spend as part of the package for the grant of distribution rights for Metro, and of the value that ANL was providing in exchange for the distribution rights. It was the evidence of Mr Gray of ANL that he believed in May 1999 that Railtrack would not have agreed to grant such distribution rights to ANL if ANL had not been prepared to sign the Side Letter. Mr Ames of Railtrack said that the proposed advertising spend was not central or critical to Railtrack’s decision to award the contract to ANL. But it is clear that it was at least a relevant factor for Railtrack, which would of course have an entitlement under the Advertising Agreement to a 50% share of such advertising revenue.

[55]Mr Fernley accepted that the advertising spend commitment in the Side Letter was not an ordinary piece of advertising business. It was not an order for advertising, which would have typically have specified precise location and period, but rather a commitment to place advertising orders up to £XXX gross value in the future. Nor was ANL’s commitment restricted to expenditure on Metro.

[56]The evidence as to exactly how ANL discharged its advertising commitment under the Side Letter was incomplete. This was due to the introduction of a new accounts system at Maiden in July 2003 (before commencement of these proceedings), the fact that old program software become corrupted, and the fact that Maiden did not retain many of the original order documents more than a year old. Mr Gollins of Maiden, who dealt in his witness statement with Maiden’s documentary records, said that he had been unable to identify the invoices from Maiden to ANL or its booking agent Poster Publicity Limited (“PPL”) in respect of advertising placed pursuant to this commitment, or the orders that would have been placed by PPL, with the result that (as he put it), “I cannot therefore be certain that £XXX is the amount that was paid by ANL.” He was only able to locate two relevant invoices. One, addressed by Maiden to PPL “as agent for Mediavest UK”, ANL’s advertising agent, was for three separate amounts, each billed as “awaiting order” for specified numbers of advertisements for the month of March 2000, and together totalling £XXX gross, or £XXX net (plus VAT), after deduction of agency commission of 15% and “specialist commission” of 5%. The other, addressed directly to ANL, was for “agreed additional advertising spend” for five TOCs, in a gross amount of £XXX, plus VAT – no deductions being shown. It was, however, common ground at the trial that ANL did in fact discharge its £XXX commitment in full, and the only quantum issue in relation to Concourse’s claim to £XXX in respect of advertising placed by ANL pursuant to this commitment was as to whether there were any “agency commissions actually paid” for the purposes of calculating the appropriate figure for Net Revenue if, as Concourse contended, such advertising spend did in principle fall within clause 8 of the Agency Agreement as “directly related other revenue”.

[57]There was no evidence as to how much ANL would have spent on advertising through Maiden had the Side Letter commitment not been made.

The Second, Third and Fourth ANL Contracts

[58]After the successful launch of London Metro, ANL decided to seek distribution rights for regional versions of Metro outside the London area. By an agreement dated 1 February 2000 between ANL, Railtrack and Maiden (“the Second ANL Contract”), ANL was granted the right to distribute a free newspaper at stations operated by Railtrack outside of London for a term of three years from 1 December 1999. The conclusion of this contract followed a tendering process in which, as was common ground, Concourse was instrumental in generating competitive activity. Thus in November 1999, Trinity Mirror had made offers for newspaper distribution rights at regional Railtrack stations, in letters addressed to Mr Greaney. The terms eventually offered by ANL were better.

[59]Clause 4.2 of the Second ANL Contract provided as follows:

“In consideration of Railtrack fulfilling its obligations under this Agreement, ANL shall: 4.2.1 pay to Maiden as agent for Railtrack the sum of £XXX plus VAT in three annual instalments… 4.2.2 purchase from Maiden (as agent for Railtrack) in the first 12 month period of this Agreement advertising space on the Stations with a gross value of not less than £XXX provided always that Maiden shall only charge ANL the best open market rates for such advertising space.”

Thus in the case of the Second ANL Contract (and in contrast to the First), the advertising commitment was included in the contract with Railtrack, and was expressed to be part of the consideration for Railtrack fulfilling its obligations thereunder, which of course included the grant of distribution rights throughout the term of the Contract.

[60]It was agreed between Mr Fernley and Mr Greaney that Concourse’s commission on any Net Revenue derived from the Second ANL Contract and falling within clause 8 would be 25%, as opposed to 31.5%. Concourse has been paid at that rate in respect of the £XXX annual instalments paid under clause 4.2.1 of the Second ANL Contract, but it has not received any share of the revenue from advertising purchased by ANL pursuant to clause 4.2.2. As to that, it is common ground that £XXX was paid by ANL. Mr Gollins was able to locate the invoice for this amount, but not the PPL order. The invoice was addressed by Maiden to ANL. It was for a gross amount of £XXX, “less 0.00%”, resulting in a net amount payable of £XXX plus VAT. The invoice description stated simply, “Associated Newspapers – additional spend. Railtrack- Northern stations in accordance with agreement with Don Gray.”

[61]The First ANL Contract was due to expire (unless renewed) on 19 May 2002. Mr Fernley accepted that Mr Greaney worked very hard during the period from 7 August 2001 to 7 February 2002 to encourage NIL and other newspaper publishers to express an interest in the London distribution rights. Thus in September 2001, Concourse as agent for Maiden made contact with various newspaper publishers to determine whether any of them had an interest in bidding for those rights, to generate competition for the anticipated renewal bid by ANL. Interested parties were invited to register their interest, valuations and operational proposals with Mr Fernley by 20 November 2001.

[62]This resulted in bids from both ANL and NIL, among others. ANL’s initial offer was made in a letter to Mr Fernley dated 26 October 2001, in which, among other things, it offered £XXX per annum for a ten year term for Railtrack London and regional distribution rights.

[63]NIL also expressed a strong interest in pursuing the opportunity to launch and distribute a free newspaper at railway stations managed by Railtrack. It did not in the event submit a formal bid, but suggested a sealed bid process, which was not acceptable to Railtrack.

[64]ANL submitted its final offer by a letter to Mr Fernley dated 7 February 2002. This stated, among other things, as follows:

“As you requested, I am detailing in writing our offer for the renewal of the Metro London Contract dated 20th May 1999. We are willing to renew the contract at a total annual figure going forward of £XXX. This amount to be allocated between Railtrack and the Train Operating Companies on the following basis: Railtrack £XXX [TOCs total £XXX] Total £XXX In addition to the above, we will offer specific benefits relating to ‘Railtrack Only’ as follows: An annual cash payment of £XXX relating to XXX. XXX pages of XXX in Metro at a value of £XXX. Advertising via Maiden on transvision screens on London Railtrack stations to the value of £XXX. The total value of the annual package is £XXX with £XXX allocated to Railtrack. The figures presented are based on a 10 year agreement with all companies whose franchise conditions extend over that period…..”

This was obviously a significant improvement on ANL’s original offer of October 2001. Mr Fernley accepted that one of the reasons why ANL’s offer improved so significantly between October 2001 and February 2002 was the effort of Mr Greaney and Concourse in creating competition for ANL. Railtrack £XXX [TOCs total £XXX]

Total £XXX

[65]After further discussions in which, among other things, it was agreed that ANL’s commitment to advertising spend would not be restricted to advertising on transvision screens, an agreement dated 15 April 2002 was duly concluded between ANL, Railtrack, Maiden and Maiden Group (“the Third ANL Contract”), by which ANL was granted the right to distribute Metro (by whatever name ANL chose to call it) at stations operated by Railtrack in and around London for an initial term of ten years from 20 May 2002.

[66]As in the case of the Second ANL Contract, ANL’s advertising spend commitment was expressed in the Third ANL Contract as part of the consideration for the grant of distribution rights. Clause 4.2 thereof provided as follows: "In consideration of Railtrack’s obligations under this Agreement, ANL shall:4.2.1 pay to Railtrack (or, where directed…, Railtrack’s appointed agent without any deduction or set off): 4.2.1.1 the sum of £XXX per annum (plus VAT)…. 4.2.2.1 the sum of £XXX per annum (plus VAT) to take account of XXX.

4.2.2 allow Railtrack to utilise, free of charge, advertising space of up to 12 pages in the Title…during each Year of this Agreement….

4.2.3 purchase from Maiden (or such other person who may have a concession for advertising in Stations in place of Maiden’s existing contract) in each Year of this Agreement advertising space at Stations (and primarily on transvision screens whilst these continue to exist) up to an aggregate gross value of £XXX provided always that ANL will only be charged reasonable open market rates for such advertising space.”

[67]Clause 12.2 of the Third ANL Contract provided as follows: “It is acknowledged that Maiden is Railtrack’s agent for the purpose of facilitating and, where relevant, performing the arrangements set out in this Agreement….but that during the term of this Agreement Maiden may cease to be involved as agent for Railtrack for the purpose of this Agreement and in such circumstances Maiden and [Maiden] Group shall immediately cease to be a party to this Agreement and references to them shall be ignored.”68. Concourse has been paid commission at the agreed rate of 31.5% in respect of the annual instalments paid under clause 4.2.1 of the Third ANL Contract, but it has not received any share of the revenue from advertising purchased by ANL pursuant to clause 4.2.3. As to that, it is common ground that ANL purchased advertising as obliged at all times prior to 30 September 2004. Mr Gollins was able to locate invoices totalling £XXX gross for the first year of the Third ANL Contract; invoices totalling £XXX gross for the second year; and invoices totalling £XXX gross for the third year, up to 31 December 2004. He was unable to locate the orders to which the invoices related. The vast majority of these invoices show deductions totalling 20%, in some identified as deductions in respect of agency commission (15%) and “specialist commission” (5%), and in others simply as “discount”.

69. There was a further agreement dated 14 October 2002 between ANL, Railtrack, Maiden and Maiden Group, for distribution of Metro at Railtrack stations not covered by the Third ANL Contract for a period from 1 December 2002 to 19 May 2012, but this contained no advertising commitment by ANL. Concourse makes no claim in respect of this Agreement, of which no further mention need be made. Events leading up to and including the conclusion of the Second Exhibition Agreement

70. On 13 June 2002 Railtrack wrote to Maiden to notify it that the First Exhibition Agreement would not be renewed pursuant to the extension provisions therein, “as your company is not entitled to such extension”: Maiden had not achieved the sales targets that would have entitled it to an extension until 30 September 2007. Accordingly the First Exhibition Agreement expired in accordance with its terms on 31 December 2002.

71. Mr Fernley thought he had informed Mr Greaney by telephone that he had been told there would be no extension to the First Exhibition Agreement. Mr Greaney’s recollection was that he was told there would be a temporary suspension of exhibition work after 31 December 2002. There was in fact a period from 1 January to about 23 February 2003 when Railtrack did not allow any exhibitions at its stations. It seems that during this period Railtrack was considering the option of expanding retail sites at its stations in preference to letting space for exhibitions.

72. It will be recalled that the Agency Agreement was for a five year term, expiring on 31 December 2002. But notwithstanding the expiry of that term, and what proved to be a temporary suspension of exhibitions at Railtrack stations, Concourse continued to work as Maiden’s exclusive agent in respect of distributions at Railtrack stations, and of exhibitions when Railtrack lifted its suspension of exhibition sites in late February 2003. It also continued to work as Maiden’s exclusive agent in respect of distributions and exhibitions at TOC stations where Maiden had concessionary rights.

73. By an agreement dated 1 April 2003 between Railtrack (by then known as Network Rail Infrastructure Limited), Maiden and Maiden Group (“the Second Exhibition Agreement”), Railtrack granted Maiden (with effect from 24 February 2003) the exclusive right to manage, promote and exploit commercial exhibitions at Railtrack stations, for an initial term of six months, Railtrack having the right to extend this initial term for a further six months, terminable on one month’s notice. As in the case of the First Exhibition Agreement, net revenue was to be split, 60% to Railtrack, and 40% to Maiden. It was later orally agreed between these parties that the Second Exhibition Agreement would be for an indefinite period, terminable by either party on six months’ notice.

74. It was common ground that Concourse continued to work as Maiden’s exclusive agent, on substantially the same terms as the Agency Agreement, until 30 September 2004, the date with effect from which the Agency Agreement was terminated by Maiden, as described below. It was Maiden’s primary case that there were in effect three separate agency agreements on substantially the same terms save as to termination: the original one, which terminated in accordance with clause 2 thereof on 31 December 2002, on the same day as the First Exhibition Agreement; a second, under which Concourse continued to act as agent for Maiden from 1 January to 23 February 2003 in respect only of distributions at Railtrack stations, and in respect of both distributions and exhibitions at TOC stations; and a third, under which Concourse acted as Maiden’s agent in respect of both distributions and exhibitions at both Railtrack and TOC stations, after the resumption of exhibitions at Railtrack stations on or about 24 February 2003. In my judgment the better analysis, and that adopted by Concourse and also put forward by Maiden as its alternative case, is that, notwithstanding the five year term expressed in clause 2 of the Agency Agreement, the parties by their conduct agreed to continue the Agency Agreement after 31 December 2002, but on the basis that thereafter it was terminable on reasonable notice. It was common ground that, whichever analysis was adopted, after 31 December 2002 it was an implied term of the agency relationship that it was terminable on reasonable notice by either party, though there were issues, which I shall have to resolve, as to whether such notice had to be in writing, and whether it would have expired in any event on 30 September or 1 October 2004. But in my judgment, it was the original Agency Agreement, and not some new agreement on substantially the same terms, that continued in effect, subject to the implied term for termination on reasonable notice, until 30 September 2004.

Railtrack’s invitations to tender and other events leading up to Maiden’s written notice of termination

[75]On 13 October 2003 Mr Greaney had lunch with Messrs Ames and Murray of Railtrack. They told him that Railtrack was going to put out to tender concessions relating to advertising, exhibitions, distributions and promotions. Mr Ames said that Railtrack did not want to award the new concessions to a company that was likely simply to sub-contract certain rights under the concessions (as Maiden had done with Concourse). Mr Ames also said that it was unlikely that Maiden would win the concessions in respect of exhibitions, distribution and promotions, as Railtrack wanted to appoint specialists to each concession. As a result of these conversations Mr Greaney decided that Concourse should not submit a joint bid with Maiden, but should enter the tender process on its own account.

[76]On 11 December 2003, Railtrack issued notice of an invitation to tender in respect of a new concession for “advertising rights” at its managed stations, including billboard and other advertising, and exhibitions and distributions, to commence on 1 October 2004 (the day the term of the Advertising Agreement expired). This was, as Maiden submitted, tantamount to notice of termination of the Second Exhibition Agreement, for which no particular form of notice had been prescribed.

[77]On 18 December 2003, Media Group wrote to Railtrack expressing its wish to register an interest in tendering for this new concession. Maiden also registered its interest.

[78]Mr Fernley and Mr Greaney met for lunch on 8 January 2004. They discussed the Railtrack tender process, and the fact that both Maiden and Concourse had registered an interest in tendering. Mr Fernley was not aware of any preference on Railtrack’s part not to appoint a concessionaire who would sub-contract. He told Mr Greaney that, although the final decision would not be his, he thought that it was more likely than not that if Maiden were to be awarded the new concession, it would not take on the exhibition and distribution work directly. This led Mr Greaney to think that if Maiden won the concession in respect of exhibitions and distributions, Concourse would act as Maiden’s exclusive agent in exploiting those rights. Mr Fernley accepted in evidence that at that time, he wished to keep open the option of Concourse continuing as Maiden’s agent. He certainly did not tell Mr Greaney then, or indeed at any time prior to 28 July 2004 (see paragraph 86 below) that Concourse would cease to be Maiden’s agent from 30 September/1 October 2004. However at no stage did Maiden make any commitment to Concourse that Concourse would continue to act as Maiden's agent if Maiden won the tender.

[79]The deadline for submission of pre-qualification documents under the Railtrack tender was 13 February 2004, as Mr Greaney reminded Maiden in Mr Fernley’s absence on holiday – though in the event the deadline was extended to 16 February 2004. Although Media Group had submitted tender documents in its own right, Mr Greaney was happy to help Maiden in this way, because he was proceeding on the assumption that if Maiden won the concession in respect of exhibitions and distributions, Concourse would continue to exploit those rights as Maiden’s agent.

[80]Mr Fernley and Mr Greaney met again for lunch in February or March 2004. They discussed some points which gave Maiden as the “incumbent” an advantage in the tender process. Mr Fernley acknowledged in evidence that one of the options he was keeping open at the time was that of continuing to employ Concourse as Maiden’s agent if Media Group was awarded the new concession. I find, in accordance with Mr Greaney’s evidence (though Mr Fernley denied this), that Mr Fernley also told Mr Greaney that Maiden had no stomach to take the exhibition and distribution work in-house.

[81]On a number of occasions during the first half of 2004, Mr Fernley said to Mr Greaney that Maiden wanted to keep the promotions concession “within the family”, by which Mr Greaney understood him to mean within the family of Maiden and Concourse, working together.

[82]By letters dated 31 March 2004, Railtrack invited both Maiden and Media Group to submit tenders in respect of the new promotions concession. The invitation to tender documents stated that advertising rights were currently contained within two concessions, held by Maiden, which expired on 30 September 2004, and that the existing Metro distribution rights would be excluded from the new promotions concession. Media Group and Maiden each submitted a tender to Railtrack for the distribution and exhibition business. Maiden also submitted a tender for the advertising business.

[83]On 14 July 2004, Railtrack announced that Maiden had succeeded in its tender for both advertising and exhibitions and distributions.

[84]On the same day, Mr Greaney telephoned Mr Fernley to enquire whether Concourse would continue to act as Maiden’s agent for distribution and exhibition work in respect of the new concessions. Mr Fernley replied that he could not say.

[85]However, Mr Fernley gave evidence that by May 2004, Maiden had decided that if it won the concessions, it would take the work in-house, so that Concourse would not continue to be its agent. Maiden did not tell Concourse of any such decision before 28 July 2004.

[86]On 28 July 2004, Mr Fernley and Mr Greaney had lunch together. This was their first meeting after the announcement that Railtrack had awarded Maiden the concessions. As Mr Fernley said in evidence:

“That was the time when I formally told Alan [Greaney] that we would not be using him as agent in relation to the new concession.”

After lunch, they adjourned to a pub to meet rest of the Concourse team, to whom Mr Fernley broke the news that the agency would end on 30 September 2004. Mr Greaney gave evidence that he thought this was all simply an opening gambit in the negotiations that he had felt would inevitably follow if Maiden won the concession. Mr Fernley rejected this suggestion, describing the occasion as a traumatic and upsetting one in which he had to go and face the Concourse team and tell them that they were not going to be reappointed as Maiden’s agent. I am sure it was traumatic and upsetting, both for Mr Fernley and for the Concourse team. I am not satisfied that Mr Greaney had any reasonable basis for believing that Mr Fernley was simply employing an opening gambit in negotiations for a continuing agency. The tenor of the meetings was certainly not, as Concourse submitted, “business as usual”. At the very least Mr Greaney realised that any continuing agency would be on different terms from those of the Agency Agreement.

[87]There was a meeting between Mr Fernley and Mr Kehoe on 4 August 2004, also attended by Concourse’s sales director Mr Robert Gay, at which Mr Fernley said the Agency Agreement would be terminated; and a further meeting between Mr Fernley and Mr Kehoe on 12 August 2004, at which the handover was discussed. At this latter meeting, Mr Kehoe said he thought that no valid termination notice had been served, and Mr Fernley responded that Concourse had known for some time that the Agency Agreement was to come to an end, but that if written notice was necessary, one month’s notice would be sufficient. Although Mr Kehoe could not recall this, it is clear from a letter he wrote to Mr Fernley later on 12 August 2004 that Mr Fernley had said at the meeting that the Agency Agreement was terminable on one month’s notice. Mr Kehoe took issue with this in his letter, adding:

“The Agreement was intended to run in parallel with the Railtrack/Maiden contract which has been extended beyond its initial 5 year term, we believe until 30 September 2007. We consider therefore that the Agreement will expire on the same date.” 81. He went on to say that if that assumption was incorrect, the Agreement was only terminable on reasonable notice, of considerably longer than 3 months, and that “We therefore consider that if you do give one month’s notice, you will have wrongfully terminated the Agreement leaving yourselves open to a further claim for breach.”

He was wrong insofar as he thought that any Railtrack/Maiden contract had been extended to 30 September 2007. As appears above, the Advertising Contract was due to expire on 1 October 2004; the First Exhibition Agreement, whose term coincided with the original term of the Agency Agreement, had expired on 31 December 2002; and due notice had been given by Railtrack, by means of the invitation to tender for the new concessions, of termination of the Second Exhibition Agreement with effect from 1 October 2004.

[88]There was a further meeting between Mr Fernley and Messrs Greaney and Kehoe on 20 August 2004, at which Messrs Greaney and Kehoe told Mr Fernley that they did not accept Maiden was entitled to terminate the Agency Agreement on one month’s notice, and that Concourse would sue Maiden, and at which Mr Fernley became quite emotional and asked them not to sue Maiden. There was a conflict in the evidence about whether Mr Fernley said he had obtained some informal legal advice favourable to Concourse. I accept Mr Fernley’s evidence that he had made no such statement. Mr Kehoe showed Mr Fernley a letter he had drafted (and which was sent to Maiden in slightly revised form on 23 August 2004). This letter asserted (for the first time in writing) claims in respect of the advertising spend under the contracts with ANL (suggesting, wrongly as I find, that clause 8 of the Agency Agreement had been drafted specifically with the proposal for a £XXX advertising spend commitment, in connection with what became the First ANL Contract, in mind). The letter added that Concourse was considering what other damages would be suffered if Maiden terminated the Agency Agreement.

[89]By a letter dated 23 August 2004, Maiden served written notice of termination of the Agency Agreement. The letter reads as follows:

“We refer to the agreement between us dated 8th January 1999 which authorized your Company (the Agent) to carry out certain acts in respect of the Company’s contract with then Railtrack (the Contract). As you are aware from your pitch to Network Rail, and which emanated from our mutual understanding that both Media Initiatives and Maiden would submit separate bids for this work, the Contract terms will come to an end on 30th September 2004. Accordingly, the Agreement between us will also have to cease from that date and the Company is entitled to terminate the Agreement at that date. This letter constitutes formal notice of termination of the Agreement on 30th September 2004. Arrangements will need to be made for the transfer of documentation and information and clearly we will need to discuss these matters.”

[90]On 6 September 2004 Mr Kehoe wrote to Mr Fernley, asserting that Maiden’s “attempt to terminate the [Agency] Agreement on 30th September 2004 is a clear breach of the terms of the Agreement”, and attaching what he described as illustrative figures of the losses which Concourse would suffer as a result, and which would be the subject of Concourse’s claim for wrongful termination. He repeated that Concourse’s primary position was that the Agency Agreement was “intended to run in parallel with the Railtrack Contract which I understand was to expire on 30th September 2007”. On this basis Concourse’s losses were calculated at a minimum of some £6.1 million. If contrary to that primary position the Agency Agreement was terminable on reasonable notice, he asserted that a reasonable notice period would be twelve months, on which basis Concourse’s losses would be a minimum of some £5.5 million. The attached calculations indicated, among other things, that the figures were based on the assumption that renewal of all TOC contracts would be for a period co-terminus with the Railtrack Contract. He suggested a meeting, but was not taken up on this suggestion.

[91]Proceedings herein were commenced on 27 September 2004, before expiry of the notice period given in Maiden’s 23 August 2004 letter.

Termination and subsequent events

[92]It was common ground that the Agency Agreement terminated or expired with effect from 30 September 2004.

[93]It was also common ground that the Advertising Agreement terminated on 30 September 2004 or 1 October 2004 in respect of distribution rights, and that the Second Exhibition Agreement terminated on 30 September 2004.

[94]Having been successful in the tender process, on 30 September 2004 Maiden entered into new agreements with Railtrack by which Maiden was granted concessions to manage, promote and exploit Promotions (as defined) and Advertising (as defined) at identified Railtrack stations. These concessions excluded distribution rights in respect of continuing ANL free newspaper distribution agreements.

[95]These new arrangements took effect at a time when the Third ANL Contract still had some 7 ¾ years to run. It had been contemplated, in clause 12.2 thereof (quoted in paragraph 67 above), that Maiden might cease to be Railtrack’s agent for the purpose of the Third ANL Contract. But it was recognised that Maiden, as holders of the new advertising concession from Railtrack, had valuable rights in respect of ANL’s continuing advertising spend commitment under the Third ANL Contract which had to be compensated in some way.

[96]On 1 October 2004, Mr Fernley wrote to Mr Gray of ANL with his proposals for ANL either to pre-pay or buy out its obligations under the Third ANL Contract to purchase £XXX of advertising per annum for the duration thereof. He offered the alternatives of a pre-payment of £XXX (based on a time-discounted valuation of the outstanding advertising spend commitment of £XXX), plus so-called “brand-to-hand” rights for a price of £XXX, giving rise to a total payment by ANL to Maiden of £XXX; and a buy-out of Maiden’s rights under the Third ANL Contract for a £XXX payment by ANL, resulting, with “brand-to-hand” rights, in a total payment by ANL to Maiden of £XXX.

[97]Discussions followed between Maiden and ANL, which resulted in the conclusion of two agreements dated 31 March 2005, between ANL, Railtrack, Maiden and Maiden Group. One was the so-called “Brand to Hand Agreement”, by which ANL was granted the right, in summary, to distribute products by hand at specified Railtrack stations. The term of this agreement is from 1 April 2005 to 30 September 2009. By clause 5, ANL agreed to pay to Maiden (for itself and as agent of Railtrack) the aggregate sum of £XXX in each complete year of the agreement and £XXX for the period from 1 April 2009 to 30 September 2009. By clause 3.1, that agreement also granted ANL a bundle of advertising and promotional rights, including specified rights to advertise on transvision screens and by poster for specified periods at Railtrack stations. Clause 3.2 of the agreement stated, among other things, "The parties acknowledge that the rights granted to ANL pursuant to clause 3.1 have a significant value to ANL which are substantially in excess of any sum payable by ANL pursuant to this Agreement and that … ANL has bought out certain advertising obligations under the [Third ANL Contract] on the understanding that this Agreement would be entered into by [Railtrack], Maiden, and [Maiden] Group and the rights set out in clause 3.1 granted to ANL …". Maiden will receive no benefit under the Brand to Hand Agreement, because by a separate agreement with Railtrack, it has agreed to pay Railtrack all sums it receives from ANL under clause 5.

[98]The other was the so-called “Buy-Out Agreement”, by which it was agreed, among other things, as follows:

“Under clause 4.2.3 of the Agreement [sc. the Third ANL Contract] ANL has agreed to purchase in each Year of the Agreement advertising space at Stations (and primarily on transvision screens) up to an aggregate gross value of £XXX (as increased by RPI in accordance with clause 4.4 of the Agreement). Subject to and on the basis as set out below, it is agreed that ANL has bought out in full its obligation under clause 4.2.3 (including for the avoidance of doubt any RPI increases pursuant to clause 4.4) by paying the sum of £XXX to [Railtrack]…and the sum of £XXX to [Maiden]…and as a result ANL shall not be entitled to have or use the advertising space and rights under clause 4.2.3 of the Agreement.”

[99]Mr Fernley explained to me that ANL’s ongoing rights for access to advertising were “contained free of charge, so to speak, to them” under the Brand to Hand Agreement.

[100]On or about 31 March 2005, ANL paid the sums of £XXX to Maiden, and £XXX to Railtrack, as agreed. By a letter dated 31 March 2005, Maiden stated to ANL, among other things, as follows:

“In consideration of your entering into the Agreement and making the payments pursuant thereto we agree that the advertising which you have booked with us pursuant to clause 4.2.3 of the Agreement for utilisation in the period up to and including 19 May 2005 and which has either not been invoiced by us or invoiced but not yet paid by you shall be provided free of charge (and credit notes shall be issued in respect of any invoices already issued and no further invoices will be issued).”

One of Concourse’s claims was for a 63% share of the £XXX paid to Maiden pursuant to the “Buy-Out Agreement”.

[101]In this connection, it is material to note that the full amount of £XXX was included as part of a larger sum recorded in Maiden Group’s Consolidated Annual Report and Accounts for 2004 as “compensation receivable in respect of the early termination of a number of contracts”. As Mr Fernley accepted, the statutory Accounts, which state that they give a true and fair view of the Maiden Group’s financial affairs as at 31 December 2004, show no costs associated with this receipt.

Scotrail

[102]Mr Fernley’s evidence was that Maiden had non-exclusive distribution rights at Scotrail stations, and was paying Scotrail a share of the revenue derived from the exercise of those rights in accordance with the terms of a 1992 contract covering advertising at British Rail stations.

[103]It was common ground (and Mr Fernley accepted) that Concourse conducted exhibition and distribution work at Scotrail stations as Maiden’s exclusive agent for these purposes, and accounted to Maiden as principal for a share of the resultant revenue.

[104]It was also common ground that ANL has made payments totalling £130,000 to Maiden in connection with the grant by Scotrail of distribution rights to ANL. The relevant Maiden invoices refer to these payments as “distribution charges regarding Metro”. It was the evidence of Mr Gray of ANL that ANL agreed to these payments to Maiden following a successful introduction of ANL to Scotrail by Mr Fernley. Maiden has paid Concourse no commission on this sum, denying it is under any liability to do so. Concourse for its part has contended it is entitled to a 63% share of this sum under the Agency Agreement.

[105]A letter from Maiden to Concourse dated 1 May 2002 recorded an agreement between the parties as to the revenue split on various TOC deals. It stated that revenue in respect of Scotrail was to be split 50:50.

The main issues

[106]The main issues (and sub-issues) between the parties were as follows:(1) Is the net revenue received by Maiden pursuant to all or any of the following: - ANL’s advertising spend commitment under the Side Letter; - ANL’s advertising spend commitment under clause 4.2.2 of the Second ANL Contract; - ANL’s advertising spend commitment under clause 4.2.3 of the Third ANL Contract; - the Buy-Out Agreement; “directly related other revenue” within the meaning of clause 8 of the Agency Agreement, such that commission is due from Maiden to Concourse in respect thereof?

(2) If it is “directly related other revenue” within the meaning of clause 8, what was the quantum of net revenue received under each relevant agreement – and what if any third-party commission falls to be deducted for the purpose of calculating Concourse’s commission entitlement?

(3) Was Maiden’s termination of the Agency Agreement with effect from 30 September 2004 wrongful? – - Did the Agency Agreement expire by virtue of the express and/or implied terms thereof on 30 September (or 1 October) 2004? - If not, was written notice of termination required? - When was notice of termination given? - What was a reasonable notice period in the circumstances existing when notice of termination was given?

(4) If Maiden’s termination was wrongful, what if any damages are recoverable in respect of such wrongful termination?

(5) Is Concourse entitled to any and if so what share of the £130,000 paid by ANL to Maiden in connection with the grant to ANL of distribution rights at Scotrail stations? Issue 1 - Is the net revenue received by Maiden pursuant to all or any of the ANL agreements in question “directly related other revenue” within the meaning of clause 8 of the Agency Agreement, such that commission is due from Maiden to Concourse in respect thereof? Concourse’s submissions

[107]Concourse’s core submissions, as summarised in its written Closing Submissions, were as follows:(1) During the period from 1 January 1998 to 30 September 2004, Concourse was Maiden’s exclusive agent for, inter alia, marketing and selling newspaper distribution rights at Railtrack managed stations;

(2) ANL’s commitments to purchase advertising from Maiden, in the Side Letter and in the Second and Third ANL Contracts (together, “the ANL Agreements”), were given by ANL to Maiden as part of the consideration provided by ANL for the grant to it of newspaper distribution rights;

(3) The sums received by Maiden pursuant to those commitments comprised “directly related other revenue” within the meaning of clause 8 of the Agency Agreement, and in the premises, Maiden was obliged by to pay Concourse its agreed share of those sums;

(4) The Third ANL Contract was made during the term of the Agency Agreement and comprised “future business booked” within the terms of clause 18 of the Agency Agreement. In the premises, Maiden would have been obliged to pay commission to Concourse on sums received by Maiden from ANL under clause 4.2.3 of the Third ANL Contract after 30 September 2004;

(5) The sum of £XXX paid by ANL to Maiden in March 2005 under the Buy-Out Agreement was paid by ANL in discharge of its obligation under clause 4.2.3 of the Third ANL Contract. This payment of £XXX (together with the payment of £XXX to Railtrack) was in lieu of payments by ANL of £XXX per annum until 2012. Maiden is obliged to pay commission to Concourse on the sum of £XXX it received in lieu of such annual payments.

[108]Concourse further pointed out that Maiden had paid commission to Concourse on the cash consideration that it received from ANL under the ANL Agreements, and does not dispute that it was obliged to make such payments. It followed that it was common ground that Concourse had the right to receive commission from Maiden in respect of those Agreements, albeit that the quantum due was disputed; and consequently, the extent of the causal effect of Concourse’s actions on the conclusion of the ANL Agreements was, so Concourse submitted, not relevant to the issue of whether Concourse is entitled to commission on the sums paid by ANL pursuant to its commitments to purchase advertising. But, in any event, Concourse’s actions did have the effect of persuading ANL to pay considerably more for the newspaper distribution rights than would otherwise have been the case. Therefore this was not a case where an exclusive agent claims commission on the execution of a transaction that did not involve the agent.

[109]In elaboration of its core submissions, Concourse submitted that it was clear from the background to and terms of the Side Letter that ANL’s advertising spend commitment therein was part of the consideration provided by ANL for the grant to it of newspaper distribution rights under the First ANL Contract. I have already described the background in some detail. As to the Side Letter itself, Concourse relied on the fact that it made express cross-reference to the agreement “in relation to the distribution of London Metro” (i.e. the First ANL Contract, in fact signed the following day); the fact that it was clearly intended by ANL to create a legal obligation in favour of Maiden; and the fact that, although ANL’s obligation to purchase advertising was conditional upon Maiden discounts and rates equivalent to the most competitive offered to others, the Side Letter (which Maiden did not countersign) imposed no obligation upon Maiden to sell advertising to ANL, and (as Mr Fernley accepted) did not deal with a number of issues that would be addressed in an ordinary advertising agreement, such as the product, the precise dates, the location, or the type of format. Accordingly, so Concourse submitted, the only possible and obvious consideration for ANL’s commitment was the grant by Maiden to it of distribution rights by the First ANL Contract. In substance those two documents comprised a single transaction for the grant of such rights, and fell to be construed together.

[110]Concourse further submitted that whether ANL would have spent £XXX on advertising at Railtrack-managed stations even if it had not executed the Side Letter was irrelevant to the issue of whether its commitment to do so could in law be consideration for the grant to it of distribution rights. Even assuming that ANL had intended to spend that sum on advertising at Railtrack stations, a legally binding commitment by ANL to do so was clearly capable in law of being consideration. In any event, there was no evidence as to how much ANL would have spent on advertising at Railtrack stations in the absence of the Side Letter. And whether Railtrack would have agreed to grant distribution rights to ANL even if the Side Letter had not been executed was irrelevant to the issue of whether Concourse was entitled to the payment of commission on the sums received pursuant to that commitment. It was no answer to an agent’s claim for commission to say that the principal would have completed the transaction in any event on less advantageous terms. Consequently, so Concourse submitted, it was no answer to its claim for Maiden to say that ANL’s commitment to purchase advertising was not central or critical to Railtrack’s decision to choose the ANL bid over the alternatives.

[111]As to the Second and Third ANL Contracts, Concourse relied on the fact that clause 4.2 of each of those contracts expressly provided that ANL’s agreement to purchase advertising from Maiden to a certain value was made in consideration of the grant to ANL of distribution rights, such that it was clear that the consideration provided by ANL under each of those contracts comprised a cash payment and a commitment to buy advertising. At the time each was concluded, Maiden had the exclusive distribution rights in relation to Railtrack. Consequently it was, in Concourse’s submission, beyond argument that ANL’s commitment to purchase advertising was obtained by Maiden in exchange for the grant to ANL of distribution rights.

[112]Turning to the Agency Agreement, Concourse submitted that the real issue (in the light of the foregoing) was whether its right to commission was restricted to only part of the consideration received by Maiden for the distribution rights, or whether Concourse was entitled to the payment of commission on the full consideration received by Maiden.

[113]Concourse drew attention to the fact that clauses 10 and 17 of the Agency Agreement contemplated Concourse invoicing and collecting payments from third parties as Maiden’s agent, deducting its commission and then accounting to Maiden; but that in the case of the ANL Agreements, it had been agreed by Maiden and Concourse that Maiden would receive payments from ANL instead of Concourse, and that is what happened. The phrase in clause 8, “the addition of all gross revenues” referred to the payments actually received by Concourse as Maiden’s agent (or, in the case of the ANL Agreements, by Maiden) from third parties in consideration of Concourse (as Maiden’s agent) granting those third parties the right to conduct exhibitions and distributions at the relevant railway stations.

[114]The words “including any directly related other revenue” were, it was submitted by Concourse, intended to widen the scope of the clause 8 definition of “Net Revenues” beyond “the addition of all gross revenues” less permitted deductions: the commercial purpose of that extension was to ensure that Concourse received commission on the full consideration received by Maiden for the grant of exhibition and distribution rights. Given that Concourse’s commission was based on Maiden’s Net Revenue, it was clearly intended by the parties that that commission would be commensurate with the benefit received by Maiden by way of Net Revenue, and there could be no justification for segregating or hiving off any part of Maiden’s benefit and denying Concourse its commission on that part – particularly where as here Concourse had played an active part in persuading ANL to commit itself to purchasing advertising in May 1999.

[115]The cash consideration received for exhibition and distribution rights was clearly included in the “addition of all gross revenues”. But “directly related other revenue” was clearly intended to be wider, and included revenue flowing from an agreement by a third party to buy services from Maiden, where that third party’s agreement was made in exchange or part exchange for the grant of distribution rights.

[116]That construction, so Concourse submitted, had the sensible commercial effect of restricting Concourse’s right to commission to those sums that were received by Maiden as part of the consideration for the grant of distribution or exhibition rights. As indicated in paragraph 118 below, the contrary construction had the absurd effect of restricting Concourse’s commission to part of the consideration received by Maiden.

[117]Revenues received by Maiden that had no relationship to exhibitions and distributions could not be “other revenue”, much less “directly related other revenue”, as they fell outside the scope of the Agency Agreement. But the words “other revenue” cannot be properly construed in isolation from the words “directly related”. To be “directly related other revenue” there must be some nexus between the “other revenue” and the exhibition and distribution rights. It was submitted that that nexus existed where the “other revenue” was received as part of the consideration for the grant of distribution and exhibition rights.

[118]If the true position was (as Maiden submitted) that since Concourse was not Maiden’s agent for advertising, then any revenue arising from advertising could not in any circumstances result in Concourse acquiring a right to commission under the Agency Agreement, this could produce absurd results. It would, for example, be open to Maiden to grant distribution rights in exchange for an agreement to purchase advertising from Maiden (and with no cash consideration), and thereby deprive Concourse of any right to commission, notwithstanding its exclusivity in respect of distributions. It cannot have been intended that the quantum of Concourse’s commission would vary so significantly merely because of the form of the consideration received by Maiden, which in this case was the result of ANL’s internal budgetary issues.

[119]Concourse further submitted that on Maiden’s case, the words “directly related other revenue” were redundant as they added nothing to the definition of Net Revenue; and that Maiden had failed to identify revenue that would be “directly related other revenue”, but would otherwise fall outside the definition of Net Revenue. The examples given by Mr Fernley and in Maiden’s submissions (see paragraph 128 below) would fall within the definition of Net Revenue in any event, and would not comprise “directly related other revenue”.

[120]Concourse relied on the decision of the Court of Appeal in Connell Estate Agents v Begej [1993] 2 E.G.L.R. 35. In that case, an estate agent was entitled to a commission of 2% on “the purchase price” following a sale. The estate agent introduced a purchaser to Mr Begej, who bought the house for a total consideration of £109,000, comprising a cash payment of £53,000 and the conveyance of another property. The Court of Appeal (reversing the trial judge) rejected Mr Begej’s argument that the estate agent was entitled to commission calculated only on the cash payment of £53,000. Hirst LJ accepted that “price” could comprise “money or money’s worth”, and added “in part-exchange it is wholly artificial to divide the consideration and segregate the cash element from the part-exchange element”.

[121]Concourse submitted that it would be commercially absurd to deny an agent commission in circumstances where, as here, acting with the agreement and consent of the principal, the agent had through its own efforts obtained a valuable benefit for the principal.

[122]Concourse relied on clause 18 of the Agency Agreement, which makes provision for the payment of commission to Concourse after termination of the agency. It was submitted that Concourse’s right to commission accrued when “future business” was booked, i.e. when a third party contracted to purchase distribution or exhibition rights. But Maiden was not obliged to pay commission until payment was received from the third party. Consequently, clause 18 made provision for the inevitable period after termination during which Maiden would continue to receive payments in respect of “future business booked” before termination. The ANL Agreements each comprised “future business booked” under clause 18. Consequently, any sum that Maiden would have received from ANL after termination pursuant to clause 4.2.3 of the Third ANL Contract would have resulted in Concourse acquiring a right to payment of commission.

[123]The Buy-Out Agreement was, Concourse submitted, executed for the specific purpose of discharging ANL’s contingent liabilities under clause 4.2.3 of the Third ANL Contract, and the sum of £XXX was paid to Maiden thereunder in lieu of its share of the sum that would otherwise have been payable by ANL pursuant to its advertising spend commitment in that clause, and on which Concourse would have been entitled to commission by virtue of clause 18 of the Agency Agreement. Since the payment of £XXX was intended to be in substitution for annual payments of £XXX, it was submitted that the receipt of £XXX resulted in the acceleration of Concourse’s accrued right to the payment of commission on sums received under clause 4.2.3. It was irrelevant whether or not there were any costs to Maiden associated with that receipt, but in any event the evidence was that there were not.

Maiden’s submissions

[124]Maiden emphasised the distinction between the three different forms of promotional activity – advertising, distributions and exhibitions. Concourse was Maiden’s exclusive agent for distributions and exhibitions, to which alone the Agency Agreement related. Concourse had never been retained by Maiden to act on its behalf in relation to advertising matters. As Mr Fernley explained, advertising is a very different business to that of exhibitions and distributions, and has very different economics. As Mr Greaney had accepted, Maiden had certain costs in its advertising business, which it would not have had in respect of distributions and exhibitions, such as the cost of structures and sites, the cost of materials, and staff costs. Concourse for its part did not employ anyone to deal with advertising in its relationship with Maiden. It is not uncommon for an exhibitor or distributor to take advertising space to coincide with its exhibitions or distributions. But whenever Concourse had a deal that required an advertising element, it would pass that lead on to Maiden.

[125]Maiden submitted that the parties cannot have intended when they entered into the Agency Agreement that advertising expenditure would or could constitute “directly related other revenue”. It would be commercially absurd to hold that the parties intended, by including the words “directly related other revenue” in the Agency Agreement, to give to Concourse an entitlement to commission on monies paid to Maiden in respect of parts of the Maiden’s business for which Concourse was not an agent.

[126]Applying the principles enunciated by Lord Hoffman in Investors Compensation Scheme Ltd. v West Bromwich Building Society

[1998] 1 WLR 896

, at 912 - 913: a reasonable person having all the background knowledge which was available to the parties in January 1999 would understand that the parties were concerned to ensure that Concourse was paid commission on all distribution and exhibitions work obtained by it during the course of the proposed Agency Agreement; but not on advertising, in respect of which Concourse was not to be Maiden’s agent, and had no employees to deal with advertising for Maiden’s account. The meaning of clause 8 contended for by Concourse flouted business common sense, given the above, and the knowledge that the parties had about the different financial regimes applicable to distributions/exhibitions on the one hand, and advertising on the other.

[127]The phrase in clause 8, “gross revenues less agency commissions actually paid”, referred to the fees received in respect of distribution and exhibition business actually booked by Concourse. Agency commissions were payable in respect of such “gross revenues”, and it was those fees which were to be the primary source of commission. For additional commission to be payable, the “revenue” had to be something other than “gross revenues”, and to be “directly related” to the distribution or exhibition work booked by Concourse, not merely indirectly related. The ANL advertising spend was not directly related to that work – it was related to advertising. At best it was indirectly related to the ANL newspaper distribution deal (as would have been any benefits in kind received by Railtrack -e.g. free advertising spend in ANL newspapers).

[128]Maiden contended that, contrary to Concourse’s submission, the phrase “directly related other revenue” is not without content on Maiden’s construction. It would apply, for example, where a mobile telephone operator was required to pay monies to Maiden in respect of mobile telephone contracts concluded as a result of the use of a stand by the operator, or where space was let to a company collecting names and addresses of Railtrack customers as nominations for credit card enrolment, and commission was paid by the card issuer on the basis of nominations successfully converted into accounts, or where sites were let for market research rather than exhibitions.

[129]It was important to note a concession by Concourse that it was not entitled to commission on advertising bought in connection with a distribution campaign. As to the distinction Concourse sought to draw between such a case and the case where advertising was “part of the ‘price paid’ for the distribution rights”, Maiden submitted that as a matter of fact, the ANL monies were not part of the price paid for the distribution rights under any of the ANL Agreements.

[130]Thus, in relation to the Side Letter advertising spend commitment:(1) Mr Gray of ANL had not accepted that one of the things ANL received in return was the right to distribute newspapers: he said what ANL received in return for the £XXX spend pursuant to the commitment was £XXX of advertising, as the parties had contemplated. The commitment was no sham;

(2) Mr Ames of Railtrack gave unchallenged evidence that the commitment was not central or critical to Railtrack’s decision to award the free newspaper distribution concession to ANL, and was not seen by Railtrack as additional payment for the distribution rights;

(3) For a number of reasons the ANL offer was far superior to that of NIL, even without that commitment and the additional benefit it would bring to Railtrack. The commitment was not necessary to give “clear water” between the two rival offers;

(4) Mr Fernley had said he did not see the commitment as being part of the price paid for distribution rights;

(5) Mr Greaney himself presented the proposal of advertising spend to ANL in a manner unconnected to the price of the distribution rights. He said in evidence: “Yes, what I actually said to them was "You as a group will spend tens of millions of pounds on different forms of advertising from television through to even online perhaps in those days. Why don't you just move some of that around and spend it on the railways? And that will make a complete difference to the quality of your offer, that and the front loading and that should be a knockout kind of win."

(6) Mr Greaney knew that ANL’s maximum budget for distributions was £XXX. The fact that it took ANL only five minutes to hear and agree to Mr Greaney’s proposal that it should commit to spend £XXX on advertising is consistent with ANL already expecting to spend that much on advertising, and inconsistent with ANL being willing to pay an additional £XXX for the distribution rights.

[131]In the light of the above, the advertising spend pursuant to the Side Letter commitment was not “directly related other revenue” for the purposes of clause 8 of the Agency Agreement. Concourse has been fully paid large sums of money in relation to the distribution rights granted to ANL, and that was all it was entitled to.

[132]As to the Second and Third ANL Contracts, Concourse had no involvement in negotiating or securing the advertising spend commitments thereunder. Those sums were negotiated between Mr Gray and Mr Fernley. Neither the fact that these commitments were included within the terms of the Second and Third ANL Contracts (rather than being in a separate side letter), nor the fact that they were in each case expressed to be “in consideration of Railtrack fulfilling its obligations under this Agreement”, had the result that sums received by Maiden pursuant thereto were “directly related other revenue” for the purposes of clause 8: in agreeing to the terms of the Second and Third ANL Contracts, the parties were not directing their minds to the question of the price at which Railtrack’s distribution rights were being purchased – they were simply seeking to reflect the price of the package that ANL had agreed to purchase from Railtrack. That package included both distribution rights and advertising. Accordingly, there is no reason to find that sums payable pursuant to the advertising commitments in either of these agreements were “directly related other revenue” for the purpose of clause 8 of the Agency Agreement.

[133]Maiden submitted that the Brand to Hand and Buy-Out Agreements walk hand-in-hand, and represent a compromise between Maiden and ANL in relation to Mr Fernley’s letter dated 1 October 2004. The payment of £XXX to Maiden was both consideration for a buy-out of Maiden’s rights under clause 4.2.3 of the Third ANL Contract, and a pre-payment in respect of certain advertising rights granted to ANL by Railtrack and its exclusive advertising agent Maiden under the Brand to Hand Agreement. Mr Gray had given unchallenged evidence as to the interconnected nature of these two agreements. The payment was therefore not caught by either clause 8 or clause 18 of the Agency Agreement.

Conclusions on Issue 1

[134]I have concluded that, for the reasons advanced by Concourse, the net revenue received by Maiden pursuant to all of the agreements in question was “directly related other revenue” within the meaning of clause 8 of the Agency Agreement, such that commission is due from Maiden to Concourse in respect thereof.

[135]First, it seems to me to be clear beyond argument that the advertising spend commitments given by ANL in each of the Side Letter and the Second and Third ANL Contracts did form part of the consideration for the grant of distribution rights under the First, Second and Third ANL Contracts respectively. The question of what was the consideration for the grant of those rights is a question of mixed fact and law. It depends on a proper construction of those agreements, construed in their factual context. It does not depend on the subjective views or intentions of the parties or the individuals who acted on their behalf.

[136]As to the Side Letter, it is as Concourse submitted clear both from the background to and from the terms of the Side Letter that ANL’s advertising spend commitment therein was part of the consideration provided by ANL for the grant to it of distribution rights under the First ANL Contract, signed the following day. ANL, through Mr Gray, was under the impression that Railtrack would not have agreed to grant it distribution rights for the London Metro unless it signed the Side Letter, and thereby made a commitment which was clearly intended to have legal effect. Whether the Side Letter took effect as an offer of a collateral contract which was accepted and thereby became binding on ANL when the First ANL Contract was signed, or whether the Side Letter and the First ANL Contract are to be construed together as a single transaction, perhaps does not matter, though in my judgment it is the former analysis that is the correct one. What is clear is that the commitment was given as part of the deal for the grant to ANL of distribution rights as detailed in the First ANL Contract. The Side Letter did not in itself contain any obligation on the part of Maiden (to whom it was addressed but who did not sign it). The only consideration for the obligation on the part of ANL to which it gave rise was the grant of those distribution rights, albeit that the obligation was conditional on Maiden giving discounts and rates equivalent to the most competitive offered to other advertisers.

[137]I agree with Concourse that it is irrelevant whether the ANL offer without the proposed advertising spend commitment was superior (as it appears to have been) to the NIL offer; or whether Railtrack would have accepted the ANL offer without that commitment (as I find is probably the case); or whether ANL would have incurred advertising expenditure to the tune of £XXX or any other sum if it had not given that commitment (as to which there was no evidence). The inescapable fact is that the commitment was given as part of the overall deal for the grant of distribution rights.

[138]As to the Second and Third ANL Contracts, as already noted, the advertising spend commitments were included therein, and were expressed to be part of the consideration, respectively, “of Railtrack fulfilling its obligations” thereunder (Second ANL Contract), and “of Railtrack’s obligations” thereunder (Third ANL Contract). Those obligations included, in each case, the grant of the distribution rights.

[139]Concourse was instrumental in obtaining the deals that resulted in ANL’s signature of the Side Letter and the conclusion of the First ANL Contract, and in the conclusion of the Second and Third ANL Contracts. The advertising spend commitment that became incorporated in the Side Letter was Mr Greaney’s idea, and the seed thus sown was subsequently planted in both the Second and the Third ANL Contracts, though the commitment in those cases was negotiated by Mr Fernley rather than Mr Greaney. But, as Concourse submitted, this was not a case where an exclusive agent claims commission on the execution of a transaction that did not involve the agent.

[140]I turn next to the central issue as to the proper construction of clause 8 of the Agency Agreement. In construing this clause, I have well in mind the applicable principles of construction of contracts, as articulated, for example, by Lord Hoffman in Investors Compensation Scheme Ltd. v West Bromwich Building Society (supra). I also bear in mind the fact that, as the Agency Agreement itself makes clear, Concourse was appointed as Maiden’s exclusive agent in relation only to exhibitions and distributions. It was not appointed, and never acted, as Maiden’s agent in respect of advertising, a distinct form of promotion where the economics are different, and in respect of which Maiden, but not Concourse, could be expected to incur costs.

[141]Clause 8, construed in its contractual context and by reference to the factual background to the Agency Agreement, is clearly primarily directed at revenues received as a result of exhibition and distribution business booked by Concourse as Maiden’s agent, from fees which it was anticipated would be invoiced by and paid to Concourse as Maiden’s agent, and in respect of which Concourse would then account to Maiden, retaining only its appropriate percentage of the net revenues. If a third party who, for example, booked exhibition space at Waterloo Station, decided it also wished to place advertisements at the station to promote the product being exhibited, then it was rightly conceded by Concourse that it would be entitled to commission on the exhibition fee, but not on the separate fee that would be charged by Maiden for advertising space.

[142]However it is also clear that the addition of the phrase “including any directly related other revenue” was intended to widen the scope of the revenues in respect of which Concourse would be entitled to commission. The phrase “other revenue” must have been intended to denote revenue which would not (or at least arguably would not) otherwise have been included within the definition of “Net Revenues”, or the expression “all gross revenues” - the paradigm of which would be the gross cash fee for an exhibition, or distribution, as shown on Concourse’s invoice to its customer. If that had not been intended, the phrase would have been surplusage.

[143]It is equally clear that Concourse’s right to commission in respect of “other revenue” was circumscribed, in that the only “other revenue” which was to be included in calculating the Net Revenues on which commission was payable was “directly related other revenue”. Revenue which was only indirectly related to advertising or distribution business was not to be included.

[144]The sums received by Maiden pursuant to the advertising spend commitments in the Side Letter and the Second and Third ANL Contracts were clearly related to the grant of distribution rights, in that (as I have found) those commitments formed part of the consideration for the grant of such rights. The question I have to decide is on which side of the line, directly or indirectly related, those sums fall, and for that purpose how that line is to be drawn.

[145]In my judgment the only cogent suggestion as to how that line is to be drawn is that put forward on behalf of Concourse, namely that revenue flowing from an agreement by a third party to buy services from Maiden is “directly related other revenue” for the purposes of clause 8, where that third party’s agreement was made in exchange or part exchange for the grant of distribution (or, I would add, exhibition) rights. That construction, as Concourse submitted, has the sensible commercial effect of restricting Concourse’s right to commission to those sums that were received by Maiden as part of the consideration for the grant of distribution or exhibition rights. As Concourse also submitted and illustrated, the contrary construction has the absurd effect of restricting Concourse’s commission to part of the consideration received by Maiden. Although Concourse was not Maiden’s agent for advertising and was not entitled to commission on advertising revenue which was not directly related to the grant of exhibition or distribution rights, there is nothing in the Agency Agreement which stipulates that commission could not in any circumstances be payable on advertising revenue.

[146]Maiden’s attempts to find examples of cases of “directly related other revenue” so as to give content to the phrase on Maiden’s construction of it, merely served to illustrate the difficulties of adopting that construction. On Maiden’s hypothesis that a site might be let for market research which did not qualify as an exhibition, the letting, and the resultant revenue, would fall outside the Agency Agreement. As Concourse pointed out, if as part of a deal for the hire of exhibition space it was agreed that a fee would be payable for new customers signed up as a result of the exhibition, whether to a mobile telephone contract, or a credit card agreement, then the gross revenue thus derived would be part of the cash consideration for the letting of the space, although its receipt might be deferred for some time. It would qualify for commission as part of the “gross revenues” received, without the need to resort to the “directly related other revenue” extension to clause 8. Conversely, the fee for advertising booked by an exhibitor independently of the deal for the hire of the exhibition space, but to promote the product being exhibited, would be only indirectly related other revenue, and so would not qualify for commission, as Concourse accepted.

[147]Accordingly I have concluded that Concourse was and remains entitled to commission on the advertising spend pursuant to ANL’s commitments in the Side Letter and the Second and Third ANL Contracts.

[148]I also accept Concourse’s submission that pursuant to clause 18 of the Agency Agreement, any sums that Maiden would have received from ANL after termination pursuant to the Third ANL Contract would have resulted in Concourse acquiring a right to payment of commission, as being sums received in respect of “future business booked”, namely the grant of distribution rights to ANL under that agreement. Accordingly if, as I have found, Concourse is entitled to succeed on the issue of construction of clause 8, sums received pursuant to clause 4.2.3 of the Third ANL Contract would be caught by clause 18.

[149]The Buy-Out Agreement was, I find, executed for the specific purpose of discharging ANL’s contingent liabilities under clause 4.2.3 of the Third ANL Contract, and the sum of £XXX was paid to Maiden thereunder in lieu of its share of the sums that would otherwise have been payable by ANL pursuant to its advertising spend commitment in that clause, and which would have attracted commission as “directly related other revenue” under clause 8 of the Agency Agreement. Although the Buy-Out Agreement was connected with the Brand to Hand Agreement, which granted ANL a bundle of advertising and promotional rights, including specified rights to advertise on transvision screens and by poster for specified periods at Railtrack stations, that does not detract from the fact that the £XXX was, by the express terms of the Buy-Out Agreement, paid to buy out ANL’s clause 4.2.3 obligations. Accordingly, the £XXX was revenue received in respect of future business booked for the purposes of clause 18 of the Agency Agreement. It was moreover treated in Maiden Group’s statutory Accounts as a cost-free receipt; but in any event, as Concourse submitted, its commission was to be calculated by reference to Net Revenues as defined, rather than to Maiden’s net profit. I will deal with the quantum of Concourse’s claim in respect thereof under Issue 2, to which I now turn. 144. Concourse’s submissions

[150]Concourse submitted that Maiden was entitled to deduct agency commission from Net Revenues only in so far as such commission was (in the language of clause 8 of the Agency Agreement) “actually paid”, and that the burden of proving that such commission was actually paid lay with Maiden, which had failed to discharge that burden of proof. Maiden had not pleaded that it had paid agency commission and that as a consequence Concourse’s commission entitlement ought to be calculated on a lower sum. It had adduced no evidence to the effect that it was either obliged to pay such commission, or that such commission was actually paid. The sole reference was in a schedule exhibited to Mr Gollins' witness statement, to the effect that the advertising invoice amounts “do not take into account any commission taken by Poster Publicity”: the invoices referred to in the schedule (many of which were from Maiden direct to ANL, or gave no detail of the underlying advertising) did not by themselves establish that Maiden incurred a liability to pay agency commission, or that it had in fact paid any such commission.

[151]Accordingly, Concourse’s commission on advertising spend pursuant to the Side Letter and the Second and Third ANL Contracts fell to be calculated on the sums of £XXX, £XXX, and the gross sum spent on advertising through Maiden pursuant to the Third ANL Contract, namely £XXX. It was to be calculated at the rates of, respectively, 31.5%, 25% (pursuant to the agreement for commission at a reduced rate in relation to the Second ANL Contract, referred to in paragraph 60 above), and 31.5%, giving rise to the totals claimed of, respectively, £XXX, £XXX and £XXX. And Concourse was also entitled to commission of 63% on the £XXX paid to Maiden under the Buy-Out Agreement, as this in effect represented Maiden’s 50% share of the rights bought out, and Concourse was entitled to 31.5/50 of the £XXX.

Maiden’s submissions

[152]Maiden observed that Concourse was only able to point to a very few invoices (including one relating to the £XXX spend pursuant to the Side Letter commitment, one for the sum of £XXX pursuant to the Second ANL Contract, and one for the buy-out sum), which do not expressly indicate that 20% commission has been paid. The vast majority of invoices exhibited to Mr Gollins’ Witness Statement show commission (or “discount”) of 20% being deducted.

[153]I was invited to find or infer that all the payments for ANL advertising spend pursuant to the Side Letter, the Second ANL Contract and the Third ANL Contract were received by Maiden in their net amounts (i.e. less 20%) and to hold that those deductions constitute “agency commissions actually paid” for the purpose of clause 8, because:(1) The agreements all provided for agency commission to be deducted from the headline sum (the Side Letter expressly provided that the £XXX was a gross figure including “agency commission payable to our contracted media buyer”, whilst the Second and Third ANL Contracts dealt with “gross value”);

(2) Mr Greaney said that he expected commission to be knocked off the £XXX annual advertising spend under the Third ANL Contract;

(3) In relation to the invoices for the £XXX spend pursuant to the Side Letter, not all the invoices are available (for the reasons given by Mr Gollins), but one of the two that was shows commission being deducted;

(4) In relation to the invoice for the £XXX spend under the Second ANL Contract, it related to an obligation that ran for a similar period to that in respect of the £XXX spend, and is shown, by manuscript notes on a copy thereof, as having been divided 50:50 between the Daily Mail and The Mail on Sunday;

(5) In those cases where Maiden rendered an invoice to PPL rather than to ANL, the procedure would, so it was submitted, have been that PPL would have then have raised an invoice to Mediavest, and Mediavest would have raised one to ANL; and that in the case of the PPL and Mediavest invoices, these would have shown the amount due to these agents, including their respective commissions – whilst the invoice raised by Maiden showed the gross fee, and the net sum Maiden expected to be paid after deduction of 20% total commissions;

(6) It is fair to infer (in light of the vast majority of invoices that show commission being deducted and the terms of the applicable agreements) that agency commissions were indeed deducted from the monies paid to Maiden.

[154]If, contrary to Maiden’s primary submission, Concourse was in principle entitled to commission in respect of the £XXX paid under the Buy-Out Agreement, Maiden did not challenge Concourse’s submission that it was entitled to commission at a rate of 63%, being 31.5/50 of the sum received as Maiden’s buy-out share. I was, however, invited to hold that insofar as Concourse (sic) is obliged to pay agency commissions in respect of Maiden’s obligations under the Brand to Hand Agreement, those commissions should be deducted from any sums payable to Concourse.

Conclusions on Issue 2

[155]There were a lot of gaps in the documentary evidence, for the reasons indicated by Mr Gollins and summarised in paragraph 56 above. However, there was compelling documentary evidence that agency commission would in the normal course have been deducted from gross fees invoiced in respect of advertising orders, and that Maiden would only have received the net fees after such deductions. That evidence comprised both the express terms of the Side Letter and of the Second and Third ANL Contracts (as referred to in paragraph 153(1) above), and the deductions totalling 20% made from the vast majority of the invoices that were produced in evidence - and was supported by Mr Greaney’s evidence that he would have expected commission to be deducted. It is true that in some cases the 20% deduction was described as “discount”. Either it was a discount properly so-called, in which case the starting point for calculation of Concourse’s commission entitlement would be the net amount invoiced – ie. gross less discount; or it was agency commission wrongly described. It was not suggested by Maiden that these invoices were subject to any further unspecified deductions, so it seems to me appropriate in either event to proceed on the basis that Concourse’s commission entitlement should be calculated on the net invoiced amounts.

[156]In relation to the £XXX advertising spend pursuant to the Side Letter, where only two invoices could be produced, one showing a total discount of 20% in respect of commission, and the other showing no discount, I think I am entitled to infer, as I do, that Maiden would have received only a net amount after deduction of commission in respect of gross invoiced sums totalling £XXX spent pursuant to this commitment, and that that net amount would have been 80% - in other words, that overall 20% commission would have been deducted from the total spend. Accordingly, Concourse is entitled to receive commission at a rate of 31.5% on £XXX, namely £XXX.

[157]In relation to the £XXX advertising spend pursuant to the Second ANL Contract, I have given details of the single invoice produced in respect of this sum, in paragraph 60 above. In the light of the content of this invoice I do not think I can draw any inference that agency commission was deducted, resulting in receipt of less than £XXX by Maiden. Accordingly, I find that Concourse is entitled to the sum claimed, £XXX, being 25% of the invoiced amount.

[158]As to the advertising spend pursuant to the Third ANL Contract, I have already mentioned that the vast majority of invoices showed a 20% deduction. The only ones that did not were the three dated 30 June 2003, and the seven for the period commencing 1 June 2004. No reason was given as to why these should have been different, with regard to agency commission or other deductions, from all the others. In the circumstances I am entitled to infer, as I do, that a 20% deduction is likely to have been made from these invoices on payment to Maiden, It follows that Concourse is entitled to commission, at 31.5%, on the net sum of £XXX, which I calculate to be £XXX.

[159]Finally, there is the question of what is Concourse’s commission entitlement on the £XXX payment under the Buy-Out Agreement. As mentioned above, Maiden did not challenge Concourse’s submission that, if entitled in principle to commission on this sum, commission should be calculated at the rate of 63%. There was no evidence of any deductions from this payment. Accordingly, I find that Concourse is entitled to commission in the sum of £XXX in respect of thereof. I can see no basis on which Concourse might have to pay commission in respect of Maiden’s obligations under the Brand to Hand Agreement, or indeed why any commission payable by Maiden in respect thereof should go to reduce the sum awarded to Concourse in respect of the £XXX payment. 155. Concourse’s submissions

[160]Concourse first submitted that there was no basis for Maiden’s contention that, by reason of an express or implied term thereof, the Agency Agreement expired on 30 September or 1 October 2004, upon expiry, respectively, of the Second Exhibition Agreement and the Advertising Agreement. Although the original term of the Agency Agreement was the same as that of the First Exhibition Agreement (i.e. both terminated on 31 December 2002), it was common ground that Concourse continued to act as Maiden’s agent after that date on the same material terms. There was no discussion or agreement to support the alleged express term. Nor was there any basis for an implied term. Indeed, the Agency Agreement expressly contemplated, by clause 30, that it might continue notwithstanding the termination of Maiden’s contracts with Railtrack or any TOC.

[161]Another answer to Maiden’s argument was the fact that the Agency Agreement was not confined to Railtrack business. There was, as Mr Fernley accepted, no reason why Concourse could not have continued as Maiden’s agent in respect of any TOC contracts in force on 30 September 2004. Had the officious bystander interrupted the parties in early 2003 (whether on 1 January or 23 February) to suggest the proposed implied term, it was submitted that the answer would not have been a unanimous “of course”. Moreover, the alleged implied term was said to be inconsistent with the express provisions of clause 30.

[162]In support of its contention that Maiden was obliged to serve written notice of termination, Concourse relied upon the various provisions of the Agency Agreement that required notice of termination to be in writing (i.e. clauses 22, 24 and 31).

[163]Accordingly it was Concourse’s primary case that notice of termination was not served until Maiden’s letter of 23 August 2004, referred to in paragraph 89 above.

[164]Concourse relied on the test for the validity of a notice of termination approved by the majority in the House of Lords in Mannai Investment Co. Lt.d v Eagle Star Life Assurance Co. Ltd.

[1997] AC 749

at pp. 772 per Lord Steyn, 780 per Lord Hoffmann and 781 per Lord Clyde, to the effect that it must be quite clear to a reasonable recipient receiving it, such that he cannot be misled by it.

[165]Accordingly, so Concourse submitted, if oral notice sufficed, then applying that test, Maiden did not give notice to Concourse at any time prior to 4 August 2004, the date of the meeting referred to in paragraph 87 above, because whatever else Mr Fernley said at meetings and in conversations prior to 28 July 2004, he did not say, and none of the statements he made would have left it quite clear to a reasonable listener, that the Agency Agreement would terminate on 30 September 2004. As indicated above, Concourse submitted that the tenor of the meeting on 28 July 2004 was business as usual, and that a reasonable observer would have concluded, as Mr Greaney said he did, that the announcement was the opening gambit in a price re-negotiation.

[166]The Railtrack tender process and the parties’ respective roles in it, including Media Group’s decision to tender for the new exhibition and distribution concession in competition with Maiden, could not amount to notice of termination of the Agency Agreement, which required a clear communication of the intention to terminate by Maiden to Concourse. Changing circumstances were not equivalent to notice of termination.

[167]As to what would have constituted reasonable notice, it was common ground that the relevant law is as set out at paragraph 31-146 of Chitty on Contracts (29th edition) and in the judgment of Longmore LJ in Alpha Lettings v Neptune Research & Development Inc.

[2003] EWCA Civ 704

, at paragraphs 30 to 38. Reasonableness is to be judged at the time of service of the notice of termination.

[168]Concourse contended that in August 2004, a reasonable period of notice was six months, alternatively three months or some intermediate period. In support of its case as to the length of notice required, Concourse relied upon the following facts and matters:(1) Concourse had acted as Maiden’s exclusive agent since 1 January 1998;

(2) Under the Agency Agreement, Maiden had an express right to terminate on not less than three months’ notice if it reasonably considered Concourse’s performance to be unsatisfactory (clause 24). Maiden did not inform Concourse that it considered its performance to be unsatisfactory. So the starting point in a case of satisfactory performance must be more than three months;

(3) Maiden considered one month’s notice to be insufficient in the case of the Second Exhibition Agreement, and negotiated a requirement that there be six months’ notice: As Mr Fernley said in evidence, “otherwise there were going to be difficulties in terms of forward bookings and what Concourse could say to the market”. The same logic must apply, so it was submitted, to the Agency Agreement;

(4) Concourse was formed to act as Maiden’s agent, and approximately 80% of its business comprised acting as agent for Maiden. Mr Greaney’s evidence was that Maiden discouraged Concourse from broadening its business beyond that of acting as Maiden’s agent;

(5) Concourse was obliged under clause 23 of the Agency Agreement to “maintain adequate numbers of staff at all times to fulfil contractual obligations and maximise performance”. It was, as Mr Fernley accepted, obliged to continue to generate maximum revenue until the end of the agency. Prior to termination, Concourse had eight staff. Without a reasonable period to find alternative work, Concourse was forced to make three of its eight staff redundant shortly after 30 September 2004;

(6) It was Mr Greaney’s evidence that it took the best part of a year for Concourse’s business to recover from the termination of the agency agreement;

(7) In February 2005, Mr Fernley informed Railtrack that a period of six months’ notice was the least that was necessary for an orderly hand-over on a contract concerning roadside advertising. Although this concerned a different form of promotional activity, it was submitted that it indicates that the minimum period was at least six months;

(8) In addition, it was Mr Greaney’s evidence that, in his experience, six months’ notice of termination is usual in an agency agreement of lengthy duration;

(9) Finally, although the Commercial Agents (Council Directive) Regulations 1993 do not apply on the facts of this case, they do require a minimum of three months’ notice to terminate an agency contract that has lasted for three or more years.

Maiden’s submissions

[169]As indicated above, Maiden submitted that the Agency Agreement expired according to its own terms on 30 September or 1 October 2004, upon expiry, respectively, of the Second Exhibition Agreement and the Advertising Agreement. When made, it was clearly intended to be, and was by virtue of the provisions of clause 2 written to be, co-terminus with the First Exhibition Agreement, as Mr Greaney had accepted in cross-examination. It would, by virtue of clause 3, have terminated before 31 December 2002 if the First Exhibition Agreement had been terminated early. Mr Greaney had also accepted that “all the contracts and all the thoughts of contract terms would have been related to the exhibition contract not the distribution contract”.

[170]In fact, the parties had continued to conduct their relationship on the terms of the Agency Agreement after 31 December 2002 (subject to there being no Railtrack exhibition work available from 1 January to about 23 February 2003). The Agency Agreement remained connected, so it was submitted, to the applicable Railtrack rights, such that from the time the Second Exhibitions Agreement came into force, its term was connected to that of the Second Exhibitions Agreement.

[171]But by latest May 2004, Concourse knew that the existing agreements between Maiden and Railtrack would expire in October 2004, and that if Maiden was reappointed by Railtrack, Concourse had no entitlement to carry on distribution work thereafter, unless Maiden in turn reappointed Concourse, which it was unlikely to do on the same terms as those of the Agency Agreement.

[172]Insofar as it was suggested that the Agency Agreement would have continued after September 2004 because there were agreements between Maiden and various TOCs in respect of which Concourse was entitled to continue to act as Maiden’s exclusive agent, Concourse had failed to show that Maiden enjoyed any exclusive TOC contracts which Concourse wished to service. Concourse had shown that it had no interest in working together with Maiden on TOC work, among other things by pitching for TOC work in competition with Maiden, and in some cases securing TOC contracts itself. As Mr Kehoe had accepted when shown documents relating to Concourse’s financial performance in July 2004, “The TOC business that Maiden had had disappeared”. In short, the Agency Agreement would not have been kept alive by the existence or possibility of TOC contract work, in respect of which Concourse was in many cases dealing by preference directly with the TOCs, in competition with Maiden, rather than dealing with them as Maiden’s agent.

[173]As to the alleged requirement for written notice of termination, given the nature of the relationship between Concourse and Maiden during 2004, and the absence of a written document containing all the terms on which the parties were by then conducting their affairs, there was no reason for the Court to infer that notice in writing was necessary to bring an end to their relationship. Accordingly, the very latest that Concourse received notice of the termination of the Agency Agreement was 28 July 2004, when, as Mr Greaney had accepted, he was informed that Maiden would not be using Concourse in the future.

[174]But if written notice was not required, Concourse had received more than the six months’ notice which it contended was a reasonable notice period. It had repeatedly received notice that the Agency Agreement would expire on 30 September 2004, and had acted on that basis since its decision, or rather that of Media Group, to put in a tender for Railtrack’s promotions concession. Receipt of Railtrack’s invitation to tender constituted notice that not only the Second Exhibition Agreement and the Advertising Agreement, but also the Agency Agreement, were due to terminate or expire, and/or that Concourse would cease to be Maiden’s agent in respect of Railtrack stations (having regard also to the fact that Mr Greaney had been told by Mr Ames of Railtrack in October 2003 that Railtrack would not want to give the promotions concession to someone who would sub-contract the work). At his various meetings and conversations with Mr Greaney up to and including that of 14 July 2004 (see paragraphs 78 - 84 above), Mr Fernley made no commitment that Concourse would continue to act as Maiden’s agent if Maiden won the new exhibition and distribution concession, and indeed said he could not say whether it would or not. Having regard to the provisions of clause 30 of the Agency Agreement, Concourse/Media Group’s conduct in tendering for the Railtrack concession in competition with Maiden was entirely consistent with a belief that the Agency Agreement was coming to an end on 30 September/1 October 2004.

[175]As to the length of a reasonable notice period, Maiden submitted that taking account of the factual position facing the parties during late 2003 and in 2004 (as described in paragraphs 75 – 85 above), one month’s notice would have been reasonable. The reasons advanced by Concourse in support of a 3-6 month notice period did not withstand examination. Concourse had only started to make people redundant in October 2004, notwithstanding the uncertainty prior to the award of the Railtrack concessions to Maiden on 14 July 2004, when there was a chance that neither Maiden nor Concourse would be awarded any of the new concessions. In essence, Concourse had gambled that it would win the exhibition and distribution concession against competition from Maiden. It had hoped that matters would come right for it in the end – as they had in 2002. Its decision to keep staff in place during the tender process could not properly be laid at the door of Maiden (and should not be used in assessing the period of notice that would be reasonable).

[176]Moreover it is part and parcel of the life of a concessionaire (and by implication a sales agent for a concessionaire) that such a person has obligations to perform, and therefore has to keep itself properly staffed, right up until the end of the concession – as clause 23 of the Agency Agreement made clear. Concourse could be expected to be rewarded for that work pursuant to clause 18. As a result of this obligation, Mr Greaney had accepted that the Claimant “could not have done anything earlier in the real commercial world”.

[177]Moreover Maiden had allowed Concourse to compete with it for exhibition and distribution work (not least for the Railtrack concession). Concourse had won many of the pitches it made to TOCs, and there was no evidence to show that Maiden did anything to prevent Concourse from developing its business outside the Agency Agreement. Indeed, by 2004, Mr Greaney had, as he told the Court, switched his focus onto the online business.

[178]In light of the above, it would not have been reasonable to require Maiden to give Concourse as much as 3-6 months’ notice. One month’s notice was sufficient.

Conclusions on Issue 3

[179]Contrary to Maiden’s submission, the Agency Agreement would not in my judgment, absent notice, have expired according to its own terms on 30 September or 1 October 2004. The parties by their conduct had agreed that it should continue (subject, as was common ground, to an implied term for termination on reasonable notice) after expiry of the five year term specified in clause 2, and notwithstanding the simultaneous termination of “the Contract” as defined therein, namely the First Exhibition Agreement, and the provisions of clause 3 of the Agency Agreement, which did not seem to me to assist Maiden’s argument at all. There was no other express term of the Agency Agreement which stipulated either a set termination date, or that the Agreement would terminate when some other agreement between Maiden and Railtrack, such as the Advertising Agreement or the Second Exhibition Agreement, expired. Nor do I think such a term can be implied.

[180]Clause 1, and the revenue-sharing provisions of clause 8, which the parties had been applying to gross revenues in respect of Railtrack and TOC exhibition and distribution business following the expiry of the First Exhibition Agreement, are not specific to any particular Maiden or TOC concession. (Although clause 1 referred to the missing “attached schedule”, it was common ground that locations could be and were added to from time to time.) Admittedly the Railtrack percentage shares mentioned in clause 8 were those in the Advertising and Exhibition Agreements. But clause 8 expressly contemplated and provided for the situation where a contract between Railtrack (or a TOC) and Maiden might provide for Railtrack (or the TOC) to take more than the 60% share Railtrack was entitled to under the Exhibition Agreements – as the parties contemplated would be the situation if the new concession was awarded to Maiden. The Agency Agreement could, it seems to me, have worked perfectly well if Maiden had been allowed by Railtrack, and had permitted, Concourse to continue to act as its exclusive agent under the new Railtrack exhibition and distribution concession.

[181]Moreover, the Agency Agreement was, as Concourse submitted, not confined to Railtrack business. There was, as Mr Fernley accepted, no reason why Concourse could not have continued as Maiden’s agent in respect of any TOC contracts that were in force on 30 September 2004, even though such business would probably not have been sufficient, had it stood alone, to make the Agency Agreement a profitable one for Concourse.

[182]I also accept Concourse’s submission that had the officious bystander interrupted the parties in early 2003 to suggest the proposed implied term as a term of their continuing relationship, the answer would not have been a unanimous “of course”.

[183]Accordingly, I have concluded that the Agency Agreement would not have expired according to its own terms on 30 September or 1 October 2004.

[184]I turn next to the question of whether notice of termination had to be in writing, as Concourse contended. The provision for termination on reasonable notice was an implied term of the Agency Agreement as it continued in force from 1 January 2003. Although there are various express terms thereof (clauses 22, 24 and 31) allowing written notice of termination to be given in specified circumstances, I see no necessity to imply, as a qualification to the implied term permitting termination on reasonable notice, that such termination notice could only be given in writing. Nor am I persuaded that the suggested implied qualification would satisfy the officious bystander test. Accordingly I reject Concourse’s contention that Maiden was obliged to serve written notice of termination.

[185]Applying the Mannai test (see paragraph 164 above), I have concluded that the first clear notice that the Agency Agreement was to be terminated was given by Mr Fernley at the meetings on 28 July 2004 (see paragraph 86 above). As I have already stated, I was not satisfied that Mr Greaney had any reasonable basis for believing that Mr Fernley was simply employing an opening gambit in negotiations for continuation of the agency; in any event, Mr Greaney realised that any continuing agency would be on different terms from those of the Agency Agreement, from which he must or should have realised that the Agency Agreement as such would not continue.

[186]I reject Maiden’s submission that events prior to this constituted notice of termination. There is a world of difference between informal discussions as to what might or might not happen in the future, and a formal notification, whether written or oral, that a contract was to be terminated.

[187]Finally under Issue 3, I turn to the question of what would have been a reasonable notice period at the relevant time, namely in late July 2004 when, as I have just found, notice of termination was given. I have concluded that, as submitted by Concourse, six months was the appropriate period, for some (though not all) of the reasons advanced by Concourse, namely (with my qualifications):(1) The fact that Concourse had by then acted as Maiden’s exclusive agent for a lengthy period - over 6 ½ years, since 1 January 1998;

(2) Under the Agency Agreement, Maiden had an express right to terminate on three months’ notice if it reasonably considered Concourse’s performance to be unsatisfactory (clause 24). It never invoked this right. The starting point in a case of satisfactory performance must be more than three months;

(3) Maiden considered one month’s notice to be insufficient in the case of the Second Exhibition Agreement, and negotiated a requirement for a six months’ notice period thereunder. As Mr Fernley said in evidence, “otherwise there were going to be difficulties in terms of forward bookings and what Concourse could say to the market”. The same logic must apply to the Agency Agreement;

(4) Concourse was formed to act as Maiden’s agent, and a very substantial proportion of its business comprised acting as agent for Maiden. It could be anticipated that it would take a considerable time for Concourse’s business to recover from the termination of the Agency Agreement (it was Mr Greaney’s evidence that it took the best part of a year);

(5) Concourse was obliged under clause 23 of the Agency Agreement to “maintain adequate numbers of staff at all times to fulfil contractual obligations and maximise performance”. Loss of the Agency Agreement without a reasonable period to find alternative work could be expected to result in redundancies (as it did, Concourse having been forced to make three of its eight staff redundant shortly after 30 September 2004);

(6) In February 2005, Mr Fernley informed Railtrack that a period of six months’ notice was the least that was necessary for an orderly hand-over on a contract concerning roadside advertising. Although this concerned a different form of promotional activity, it gives some indication of the appropriate notice period for termination of the Agency Agreement;

(7) In addition, it was Mr Greaney’s experience that six months’ notice of termination is usual in an agency agreement of lengthy duration.

[188]Accordingly, I conclude that Maiden’s termination of the Agency Agreement with effect from 30 September 2004 was wrongful. It should have given six months’ notice. It gave only just over two months’ notice. 185. Concourse’s submissions

[189]Concourse claimed damages for the loss of the chance to earn commission during the period of notice that it was entitled to but did not receive, at a rate of £28,184 per calendar month, as calculated by Mr Kehoe, based on past earnings excluding those from ANL distribution rights (which were excluded from the new Railtrack promotions concession awarded to Maiden with effect from 1 October 2004) and from TOC contracts.

[190]As Concourse pointed out in its closing submissions, the real issue in dispute related to the assumption underlying Mr Kehoe’s calculations - that Concourse would have continued to conduct exhibition and distribution work at Railtrack stations - because Maiden’s case (see below) was that this assumption was unjustified. Maiden had not pleaded a positive case on this point, had not put it to Concourse’s witnesses that Railtrack would not have permitted them to remain as Maiden’s agent, and had led very little evidence relevant to the point: the only conceivably relevant evidence being that of Mr Fernley that Railtrack did not approve of Concourse’s activities.

[191]Concourse referred to Allied Maples Group Ltd. v Simmons & Simmons

[1995] 1 WLR 1602

, and the summary of the relevant law in Chitty on Contracts 29th edition, at paragraph 26-03, on the basis of which it submitted that it was not necessary for it to prove on a balance of probabilities that Railtrack would have permitted Maiden to retain Concourse as its agent for the balance of the requisite notice period; and that provided Concourse could prove that there was a real or substantial (as opposed to a speculative) chance that it would have, then the Court must assess the chance of that action in percentage terms and make any consequential discount to the amount claimed in damages.

[192]Concourse submitted that there was a real and substantial chance that Railtrack would have permitted it to continue as Maiden’s agent for the relevant period. The only evidence of Railtrack’s apparent unwillingness to countenance the appointment of a sub-agent was Mr Greaney’s evidence of his lunch with Mr Ames on 13 October 2003, about which Mr Fernley had known nothing until the present proceedings. There was no evidence that any representative of Railtrack repeated that statement to anybody at Concourse or Maiden.

[193]Concourse had worked with Railtrack since January 1998. Mr Fernley’s evidence that Railtrack did not approve of its activities had not been put to any of Concourse’s witnesses. Furthermore, Concourse along with Maiden made it to the penultimate stage of the tender process. Had there been any real concerns on the part of Railtrack with Concourse’s performance, it is likely that Concourse would have been excluded at a much earlier stage.

[194]There was no evidence that it was a stipulated requirement of the tender, or of Maiden’s tender itself, that the concession holder would perform the work in-house and not by a sub-contractor; and the terms of the deed granting the new exhibition and distribution concession did not prohibit Maiden as the concession holder from appointing an agent.

[195]In those circumstances, Concourse submitted that there was a very high chance that Railtrack would have permitted it to continue as Maiden’s agent.

Maiden’s submissions

[196]Maiden submitted that Concourse’s case on damages was unsustainable. It submitted first that under the terms of the Agency Agreement (and given the termination of the Second Exhibition Agreement and the Advertising Agreement), Maiden had the option as to whether or not to appoint Concourse to undertake work for Railtrack. It decided not to do so, and in those circumstances, no damages were recoverable in respect of Railtrack work. In this connection, Maiden invoked the principle that, where a defendant has the option of performing a contract in alternative ways, damages for breach must be assessed on the assumption that he will perform it in the way most beneficial to himself and least beneficial to the claimant (“the optional performance principle” - see McGregor on Damages, 2003, 17th Ed, at para. 8-060).

[197]In the alternative, Maiden submitted that Concourse could not satisfy the test laid down by the Court of Appeal in Allied Maples (supra), of showing that it had lost a “real or substantial chance as opposed to a speculative one” to undertake Railtrack work after 30 September 2004. In the light of Railtrack’s indication (in October 2003) that it would not allow any sub-contracting of the promotions concession, it was proper to infer that there was no prospect of Concourse being permitted by Railtrack to undertake sub-contracted work. It could not be said that there was a “real or substantial chance” of Railtrack deciding to allow Concourse to undertake work on behalf of Maiden.

[198]In the further alternative, even if there was a “real or substantial chance as opposed to a speculative one” that Concourse would be permitted to earn some Railtrack commission, the Court should evaluate that chance at the very bottom end of the scale.

[199]Maiden submitted that in any event, Concourse could not prove the financial terms on which it would have been able to earn commission from Maiden for Railtrack work. Mr Greaney had (in effect) accepted that Maiden would have been entitled to alter the financial terms of the Agency Agreement following the re-tendering process. In those circumstances, Concourse could not show the basis for valuing the chance that it allegedly lost.

[200]Mr Kehoe’s schedules (the mathematics of which were not challenged) proceeded on the assumption that it was appropriate to annualise past profit in order to assess the value of the chance that Concourse had allegedly lost up to the end of the reasonable notice period. That assumption did not reflect the value of any chance that Concourse may in fact have lost.

[201]Accordingly, so Maiden submitted, Concourse had failed to prove its case in relation to damages.

Conclusions on Issue 4

[202]I reject Maiden’s first submission based on “the optional performance principle”. Clause 1 of the Agency Agreement had granted Concourse exclusive rights “to market, sell, produce and administer commercial exhibitions and distributions ….. at locations specified in the attached schedule, together with additional locations which may from time to time be agreed and added in accordance to this agreement”. As Concourse submitted, among those locations were Railtrack stations. If the Agency Agreement had continued, Maiden would not itself have had a right to exclude those locations from its scope.

[203]Applying the Allied Maples test, I find that there was, as Concourse submitted, a “real or substantial chance as opposed to a speculative one”, that Railtrack would have permitted Maiden to continue to sub-contract exhibition and distribution business to Concourse. It had done so for several years, and there was nothing in the new arrangements between Railtrack and Maiden which prohibited sub-contracting, and no basis for inferring that there was no realistic prospect of Concourse being permitted by Railtrack to undertake sub-contracted work. The evidence relied on by Maiden in this connection was wholly inadequate to justify such an inference. As Concourse pointed out, it made it to the penultimate stage of the tender process. Had there been any real concerns on the part of Railtrack, it is likely, as Concourse submitted, that it would have been excluded at a much earlier stage.

[204]Accordingly I must now assess, in percentage terms, the value of the chance that Railtrack would have permitted Maiden to continue to sub-contract to Concourse. In my judgment, doing the best I can on the evidence available, there was a 75% chance that it would have done so.

[205]Contrary to Maiden’s written submissions, damages must be assessed on the basis that the percentage split would be as set out in clause 8 of the Agency Agreement, as the exercise is to assess what would have happened if that had remained in effect for the unexpired part of the reasonable notice period.

[206]Mr Kehoe’s calculations are in my judgment a proper basis for assessing the loss actually suffered by Concourse as a result of Maiden’s breach of contract in terminating the Agency Agreement without adequate notice. I shall leave it to the parties to work out what the appropriate figure for damages is, having regard to my conclusions as to the appropriate notice period, when notice was served, and the valuation of the chance that Concourse would have been permitted to carry out Railtrack work as Maiden’s agent after 30 September 2004. 204. The parties’ respective submissions

[207]I can deal with this issue briefly. The salient facts are set out at paragraphs 102 - 105 above. Concourse submitted that the sums earned by Maiden in marketing Scotrail’s distribution rights, which it submitted included the payments totalling £130,000 by ANL, comprised Net Revenue under the Agency Agreement, and that as Concourse was Maiden’s exclusive agent for marketing and selling distribution rights, it was entitled to commission in the sum of £81,900 (31.5/50 x £130,000) in respect of such payments.

[208]Maiden for its part submitted that the sums in question were paid following the provision of advice and assistance by Maiden to ANL in making contact with Scotrail, and that in providing such advice and assistance, Maiden was not marketing, selling, producing or administering distributions at Scotrail stations for the purpose of clause 1 of the Sales Agency Agreement. It was not therefore acting in breach of the exclusivity it had conferred on Concourse (even assuming that Scotrail stations were “locations specified” for the purpose of clause 1). Accordingly, Concourse was not entitled to commission on the sums paid by ANL.

[209]Alternatively, Maiden submitted that any commission must be restricted to 50% of the sums paid to it, by reason of the agreement to split any Scotrail revenue 50:50.

Conclusions on Issue 5

[210]The sums received by Maiden from ANL following the latter’s conclusion of a distribution deal with Scotrail were received in connection with the marketing of commercial distributions at Scotrail stations, in respect of which, as mentioned above, Maiden had (non-exclusive) distribution rights and Concourse conducted distribution and exhibition work. Maiden was not entitled under the Agency Agreement to market such rights itself, at least without accounting to Concourse in respect of Concourse’s contractual share of any Net Revenue earned. I do not think the fact that the payments were made by ANL for advice and assistance in connection with ANL’s approach to Scotrail, which resulted in an agreement directly between Scotrail and ANL, can make any difference. Accordingly Concourse is in principle entitled to commission on the payments totalling £130,000 made by ANL to it in this connection.

[211]However, that commission is payable at 50%, not 63%, by reason of (by reason of the agreement to split any Scotrail revenue 50:50. Accordingly Concourse is entitled to commission in the sum of £65,000 in respect of the payments made by ANL to Maiden for advice and assistance in connection with its approach to Scotrail.

Summary of conclusions in respect of Concourse’s claims

[212]Accordingly, in respect of the five heads of Concourse’s claim for commission as summarised in paragraph 2 above, I have concluded that Concourse is entitled to judgment for a total sum of £1,187,206, broken down, as between the five heads of claim, as follows:(1) £XXX;

(2) £XXX;

(3) £XXX;

(4) £XXX; and

(5) £XXX.

[213]I have also concluded that Concourse is entitled to damages for wrongful termination of the Agency Agreement, calculated at the monthly rate of £21,138 (£28,184 x 75%) for the balance of the contractual six months’ notice period after deducting the period of notice actually given, from 28 July to 30 September 2004.

Orders consequent on judgment

[214]I shall hear argument from the parties as to the appropriate orders to be made in the light of this judgment.

Concourse Initiatives Ltd v Maiden Outddoor Advertising Ltd [2005] EWHC 2995 (Comm)

The facts

The Agency Agreement

Background to and conclusion of the First ANL Agreement

During the 3 year contract the annual payments will be:

The Second, Third and Fourth ANL Contracts

Total £XXX

Railtrack’s invitations to tender and other events leading up to Maiden’s written notice of termination

Termination and subsequent events

Scotrail

The main issues

Maiden’s submissions

Conclusions on Issue 1

Maiden’s submissions

Conclusions on Issue 2

Maiden’s submissions

Conclusions on Issue 3

Maiden’s submissions

Conclusions on Issue 4

Conclusions on Issue 5

Summary of conclusions in respect of Concourse’s claims

Orders consequent on judgment

Cited in 2 later judgments