Premier Rugby Ltd & Anor v Rugby Football Union & Ors [2006] EWHC 2068 (Comm)

[2006] EWHC 2068 (Comm)Case No 206 FOLIO 516
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
St. Dunstan’s House
Venue 133-137 Fetter LaneDate Thursday, 27 th July 2006
London, EC4A 1HD
Before
HIS HONOUR JUDGE DAVID MACKIE QC(Sitting as a Judge of the High Court)
Between
PREMIER RUGBY LIMITEDClaimantsTHE PREMIERSHIP CLUBSClaimantRUGBY FOOTBALL UNIONDefendantsENGLISH RUGBY LIMITEDDefendantPREMIER RUGBY PARTNERSHIP LIMITEDDefendant
Tape Transcription of Marten Walsh Cherer Ltd.,Midway House, 27/29 Cursitor Street, London EC4A 1LT.Telephone No: 020 7405 5010. Fax No: 020 7405 5026
MR. NICK PARFITT (instructed by Messrs. Michael Simkins LLP) for ClaimantsMR. DAVID PANNICK QC and MR. ANDREW GREEN (instructed by Messrs. Farrer & Co.) for Defendants
Judgment
[1]The Rugby Football Union wishes to stage an extra International match this year. It is to take place against the All Blacks on 5th November, of course, at Twickenham where it will be the opening match of the rebuilt stadium and will celebrate the opening of the new South Stand. The England team is drawn from an elite squad who play for the top clubs, The Premiership Clubs. The clubs already have matches arranged on that day and the players cannot be in two places at once.[2]A contract exists to resolve dilemmas like this where the legitimate interests of those involved conflict. The legitimate interests of the RFU are, in the context of an International match, self-evident. The clubs point out that they have interests too. The clubs say that by definition the best England players are playing for them. The players’ contracts are held by the clubs and they represent their prime assets. The effect of an additional international match on club competition can be severe. There is an example in the correspondence. On the weekend proposed for the additional International, Bath are playing London Irish. Bath are obviously more likely to provide England players than London Irish. The Bath team will be weaker than it should be during that match with a risk of loss of points which may prove crucial. The clubs point out other difficulties that can arise for them as a result of a clash like this.[3]That agreement to resolve conflict is the Long Form Agreement (known as the “LFA” for short) dated 24th July 2001. There is a disagreement between Premier Rugby and the RFU about what the contract means. The RFU says the clubs have to release players whenever there is an International. The Premier Clubs say that the clubs only have to release players at particular times identified by a mechanism in the contract. That is the question the court has to decide.[4]The matter comes to court in the form of an application by the Claimants for the various declarations which I will come to shortly. I emphasise that this interpretation of the contract is the only question I have to decide. The court is not asked or qualified to express views about the wider questions raised in the papers that the parties have put forward.

THE RELEVANT LEGAL PRINCIPLES

[5]The law about interpreting contracts is not in dispute. The court identifies the intention of the parties from the words used in the contract in their context set against the background of the surrounding facts. The court does not consider the subjective states of minds of the parties or what they say or think they intended. I bear carefully in mind the passages from the well-known authorities of ICS and BCCI that were drawn to my attention by counsel for the parties. It is for those reasons that much of the very interesting and well-written material in front of me is useful as background but otherwise irrelevant or inadmissible to the court’s task. THE PARTIES[6]I first identify the parties as the similarity of the five names used with their initials may confuse. The first claimant is Premier Rugby Limited (known as “PRL” in this case); it is the body that represents the Premiership Clubs. The Premiership Clubs themselves are the second claimant and they are the professional clubs that form the top tier league of Club Rugby within England. The Rugby Football Union (“RFU”) is the first defendant and it is, of course, the governing body for rugby football in England. The second defendant, English Rugby Limited (known as “ERL”) is a joint venture set up by the LFA to which I will come shortly. The final defendant, Premier Rugby Partnership Limited (“PRP”) is a joint venture company which represents the players’ commercial rights and interests.[7]I next turn to the LFA itself emphasising clauses which are important to the issue. The LFA is a document which, including schedules, runs to some 100 pages. It was drafted by expert lawyers and is obviously the product of close and detailed discussion, negotiation and compromise between sophisticated business people. When looking at the detail I keep in mind the key clauses on which the parties rely. Clause 9.4, in essence, requires PRL to release players for all Internationals. RFU says that 9.4 simply means what it says. PRL say that 9.4 is limited by clause 9.7 which provides for release periods which are set out in a schedule known as Schedule 10. They say that the commitment to release for Internationals under 9.4 is given effect only through and during the release periods in Schedule 10.

THE LFA

[8]I then turn to the provisions of the Agreement itself recognising, of course, that these have to be read as a whole. The Recitals to the Agreement, the introductory bits, explain that RFU and PRL have agreed to get together to form a company called England Rugby to run a business. That business is Elite Professional Rugby. The LFA is to record the terms of how RFU, PRL and England Rugby itself will be involved in and run Elite Professional Rugby, an expression meaning both England International and Premiership competitions.[9]The meat of the LFA begins at clause 3 which is headed “RFU, ENGLAND RUGBY, THE CLUBS AND PRL”. 3.1 says this: “The RFU is the governing body for Rugby in England with overall responsibility for the governance, organisation, management and development of Rugby in England. PRL and the Clubs acknowledge that it is the RFU’s sole right to organise International Rugby in England between the Unions in accordance with the terms of this Agreement and will not organise International Rugby themselves for the duration of this Agreement. The RFU confirms that for the duration of this Agreement it will not organise senior provincial rugby.” – The reference to the “Unions” is, of course, to the RFU’s counterparts in other rugby playing countries.[10]So International rugby is left to the RFU and no restrictions at all are placed by the LFA on how that should be organised. That is for the RFU which, in turn, is subject to direction by the IRB, the International Rugby Board, Rugby’s world governing body. That is made explicit in 3.2 which says:
“The Parties acknowledge that the RFU exercises its powers under the authority and is subject to the direction of the IRB” – and the various parties “agree to be bound …. by all and any IRB Bye-laws, Regulations, Directives or Decisions (together the ‘IRB Rules’) (for PRP, the extent of its obligation is restricted to the provisions of this Agreement). To the extent that performance by any Party of any obligation under this Agreement would amount to or amounts to a breach of the IRB Rules, then the Parties agree that the Rules shall have primacy over this Agreement and that the terms and conditions of this Agreement shall be deemed varied by consent of the Parties in order to conform with the IRB Rules so as to prevent or cure such breach.”
[11]There is a disagreement between the parties about the meaning of the second sentence in 3.2. RFU says this means that the LFA must be interpreted consistently with IRB Rules which contain an absolute obligation to release players for International matches. PRL says that it only comes into play if and when the LFA would require one side to do something which would break IRB Rules.[12]Then there is clause 3.9. This lists the twelve responsibilities which England Rugby will carry out. One of those is managing the EPS (the Elite Playing Squad) of players selected to play for England’s representative sides.[13]The next few clauses cover important matters irrelevant to this case. We come to clause 8 which deals with player contracts. It requires that these contracts incorporate – that is to say include – “intellectual property principles and win bonus details set out in Schedule 6.”[14]The RFU relies on Schedule 6 for two points. First, the principles impose core and non-core responsibilities upon a player. The first core responsibility on a player is “to play in the representative matches for which he is selected” and RFU say that reflects the importance attached by LFA to International matches. Schedule 6 also sets out win bonuses for the first three years of the LFA. Win bonuses are set out for five Six Nations matches and three autumn Internationals for each season as well as for the 2003 Rugby World Cup. But the Schedule adds this:
“There are no England First XV win bonuses payable by the RFU in respect of any other matches or tournaments for the period 2000 to 2001 to 2003 to 2004.”
[15]RFU says it is implicit from that that there may be matches and tournaments other than the eight traditional fixtures. PRL rely on Schedule 6 to support their position that any International match will be accompanied by sessions requiring a release period. They say why else would Schedule 6 refer to “International match weeks”? In turn the RFU says, “Well it says ‘including International match weeks’ so it is not tied to the Schedule”.[16]The clauses and sub-clauses in clause 9 are at the heart of this dispute. Clause 9 is headed “EPS, PLAYER RELEASE AND RESTRICTIONS ON GAMES PLAYED”. By clause 9.1:
“The Parties recognise the central importance of International Rugby for the finance and development of the Game. In relation to the Rugby World Cup, PRL, PRP and Clubs recognise that the scheduling of matches is a matter which is outside the control of the RFU. The Clubs, PRP and PRL agree to be bound by decisions made on scheduling in relation to these competitions and to procure the release of players in August and September immediately prior to the Rugby World Cup Finals if in the Autumn (to include the release of players for warm up matches) in addition to the agreements on player release contained herein.”
[17]Clause 9.2 involves the performance directors identifying annually the 50 or 60 players to be in the EPS. 9.3 deals with the development of the squad and its members. 9.4 is the first crucial clause. It reads as follows:
“PRL, PRP and the Clubs undertake that all EPS players will be released for all England representative games and that neither PRL, PRP nor any of the Clubs will threaten the withdrawal of or withdraw any players from representing England in any circumstances, subject to there being no material breach of this Agreement by PRU.”
[18]I will return to that clause. It is followed by clause 9.5 which, it is common ground, qualifies 9.4 by limiting the number of International matches that any one player can be required to play. “It is agreed that an EPS player shall not be required to play more than 32 Full matches per year. A player’s Full participation on the tour by the British Lions will count as 2 Full International matches/Full matches. A player shall not be required to play more than 10 Full International matches per Year or more than 8 Full International matches per Season (save for the additional England v. Ireland match in August 2001). No player participating in International matches will be required to play more than 22 Full matches for any Club in any year, provided that in circumstances where a player does not play in 10 Full International matches in any Year he may play in an equivalent number of Full matches for any Club in excess of 22 in the same Year.”[19]The clause continues in considerable detail with provisions devoted to protecting the direct interests of the players themselves. PRL says that the limit one finds in this clause is consistent with there being eight release periods as provided for in Schedule 10 (to which I am coming) that is to say the traditional three autumn Internationals followed by the five Six Nations fixtures. The RFU contends that the restrictions on players contained in this clause would make no sense if matches were restricted to those in Schedule 10, even if that Schedule does, on analysis, permit more than eight Internationals in a year.[20]The second crucial clause for the parties is 9.7:
“The Parties agree that England Rugby will have the authority to set release periods for the EPS players (which will be no more onerous for the Clubs than the release periods set in Schedule 10) so as to maximise the players’ Club and International performance. In addition to regular International release periods, there will be an agreed number of Mondays when EPS players are available for England representative ‘walk through’ training sessions during each Season. Until England Rugby decides and implements applicable release periods for EPS players, the release periods set out in Schedule 10 shall apply.”
[21]England Rugby being a company controlled by the protagonists in this case, has not yet been able to set the release periods despite the time that has gone since July 2001 and, as a result, Schedule 10 still applies.[22]Schedule 10 is headed “Release Periods”. It has a number of paragraphs of which I shall read out only some:
“1.1 The Clubs will release without fee any player as is selected for any International representative team” and then lists a series of sub-clauses. “1.1.1 for 8 Release Periods (as defined in 1.3 below) in any given Year; and 1.1.2 for all matches in the Rugby World Cup Finals and Rugby World Cup Sevens …. ; and 1.1.3 the England v. Barbarians match (as contemplated in clause 12.7 of this Agreement)” – and that is a reference to a weekend festival of rugby involving more than simply the match itself. – and 1.1.4 all matches in the IRB World Sevens Series Tournaments …. ; and 1.1.5 between Seasons, for such period(s) as shall be scheduled in the structure of International matches for ‘summer touring parties ….; and 1.1.6 for the 2000/2001 Season, the Ireland v. England postponed Six Nations match to be played during the 2001/2002 Season. in each case in relation to all of the above participation in Rugby squads organised by the RFU. In addition, players shall attend such squad training sessions as may be set by England Rugby.”
There is also a provision for postponements.[23]There is then a definition of a “release period” which is: “from and including: the Sunday or, if a player shall on that Sunday be playing or acting as a replacement in a match played on that date for his Club, then, in the case of that player, the Monday, in each case immediately prior to the Saturday or Sunday on which the International match involving England 1st XV is to be played or (where such International match is not played for any reason) was scheduled to be played; or (if later) the expiry of a previous Release Period” -- with corresponding provisions for the end of the Release Period defined in 1.3.2.[24]The RFU says that these release periods are an additional obligation placed on top of 9.4 which does not qualify the unrestricted release obligation which is placed in very clear and emphatic terms in 9.4. PRL say that the obligation in 9.4 is carried forward by means of the release period in 9.7 and Schedule 10. There is no release obligation in Schedule 10 to cover the proposed match so PRL say they are not obliged to release players for it.[25]RFU places emphasis on the opening words of Schedule 10 which refers to the Clubs releasing without fee any player. RFU says that that is an indication that other arrangements may be put into effect involving payment of a fee. RFU also contrasts the very specific and detailed provisions of some of Schedule 10 with the broader “release periods”.[26]PRL also say that two other clause in 9 support their case. I have already read out 9.1. PRL say that if 9.4 is as broad as RFU claims it is, it would cover the second sentence of 9.1 and that sentence would be unnecessary. RFU says 9.1 goes beyond 9.4 covering two months in August and September and, more importantly, also including those who play for countries other than England who are not dealt with in 9.4 at all. PRL also say that this and other references in the agreement to player release must be to 9.7. RFU say that they can apply equally to the consequences of the operation of 9.4.[27]Finally within clause 9 there is 9.18. This restricts Clubs to one non-EU player on the field at a time outside release periods but three such players when matches occur during these periods. PRL say that this links International matches to release periods because you cannot have one without the other. RFU says that this is just an indication that the release periods will be up for discussion like everything else and that the involvement of EU players may or may not form part of those subsequent discussions when an additional match is scheduled requiring release under 9.4.[28]I should also mention three other provisions of the LFA. One is clause 16. Clause 16 is headed “FURTHER ASSURANCE” and says this:
“The Parties will, in good faith, draft, negotiate and enter into such further agreements and documents as are reasonably necessary to give effect to this Agreement. Matters decided upon in this Agreement shall be fully and accurately reflected in such further agreements and documents. Matters not decided upon or addressed in this Agreement shall be negotiated in good faith by lawyers representing the Parties hereto and, in the absence of agreement by them, any matters in dispute shall be referred back to the RFU Management Board and PRL/the Clubs for agreement.”
[29]RFU says that this shows that the parties had in mind further agreements to give effect to the rights and obligations in the LFA. It says this is another indication that 9.7 and Schedule 10 are not the only route for the exercise of the rights in 9.4.[30]Clause 15 provides that either side may terminate this Agreement by giving 12 months’ notice expiring on the 30th June of any year on or after 2009. So the parties are in this together for at least the next three years although the LFA is now potentially more than halfway through its terms. Clause 18 provides for the contract to be subject to English law and to the jurisdiction of this court.[31]In addition to the provisions of the Agreement there is another legal source to which I should refer and that is Regulation 9 of the IRB which says this:
“A Union has first and last call upon the availability of a Player for selection and appearances for a National Representative Team or National Squad of that Union and all attendances associated therewith, including training sessions.”
There are then four subsequent sub-clauses which seek to give effect to that primary obligation.

WITNESS STATEMENTS AND OTHER MATERIAL

[32]I turn from the legal documents to the other papers I have been given. I have two witness statements from Mr. Barron for the RFU and witness statements from Mr. Wheeler of PRL and from their solicitor, Mr. Hornsby. All those statements have exhibits producing a considerable amount of further material, some of which I shall mention in a moment. I have explained the limited role of the evidence in this case; nevertheless I bear carefully in mind what these documents say as part of the background. They form part of the context. So too, in a broad sense, does the background known to anyone who reads the sports pages or listens to radio or watches television and, in a narrow sense, to the LFA itself. SUBMISSIONS OF

THE PARTIES

[33]The competing submissions of the parties are set out in the admirable written arguments. This being a Part 8 claim and there being no facts for me to find, they stand unaffected by what has happened at the hearing. I will, however, briefly summarise each side’s case to the extent I have not done so already, before giving my decision.[34]PRL, the Claimants, say that the purpose behind the LFA was the need for stability and for agreement about when players would be available for International matches and training sessions. They rely on an RFU representation to the IRB to this effect in 1998 including a statement that the RFU and the Clubs were concerned to reduce the number of International matches so as to allow the Clubs to develop their business during the rest of the year. They also cite similar statements in the Andrew Plan and in the RFU Strategic Plan.[35]Another document they rely on is the Joint Tender Document for the Television Rights to English Rugby prepared by RFU and the English First Division Clubs (as they were) in 2000. This records that the Schedule of English International matches has been agreed by IRB for the next five years which they see as an important factor of stability adding value to those television rights. The RFU points out that this document also states that in addition to the above matches it is likely that England will play other International matches, at home in particular, in the run up to the Rugby World Cups. These matches cannot be specified at that time.[36]PRL say that this background information and the other material they put forward establishes two things. First, one purpose of the LFA was to reach a compromise when players required for International and Club matches had a conflict, a compromise which was very much needed in the new world of professional clubs and players. Secondly, they say it shows that there was a settled expectation or common assumption that the domestic International season would, or would be likely to, comprise three autumn Internationals and the five Six Nations games. RFU says that this material is irrelevant and inadmissible and in part equivocal or of assistance to them. They also reject the second assumption in particular in that as Mr. Barron says in evidence, when LFA was entered into in 2001 the number of Internationals, those in the autumn in particular, was far from certain.[37]PRL’s arguments can be summarised as follows. First, they say that clause 9 must be read as a whole. The RFU case, they say, depends on looking at 9.4 in isolation. The LFA refers to and assumes regular International release provisions which are those set out in Schedule 10. None of these provisions would be necessary if clause 9.4 had the effect contended for by the RFU. Clause 9.4 is no more than a promise by the Clubs and the PRL that the material EPS players will be released during the release periods provided for unless the RFU are in breach of contract. Clause 9.7 guarantees to the Clubs that the release provisions set by PRL will be no more onerous than Schedule 10 states; Schedule 10 “shall apply” until ERL decides and implements its replacement. Schedule 6 assumes that players on International duty will participate in squads in the week before the relevant International and this is only provided for by Schedule 10. PRL say the provision of eight release periods is to cover the normal domestic season of three autumn and five Six National Internationals. This is assumed by the season limit on the EPS players and the structure of the England Win Bonuses. Clause 9.7 places the responsibility for setting release periods with the ERL. Any changes to those periods including any attempt to identify to which matches they might apply is a power given to ERL pursuant to the express wording of 9.7 and ERL’s responsibility to manage for the EPS.[38]The principal arguments of the RFU are as follows. First, 9.4 means what it says: the court should adopt its natural and ordinary meaning; that 9.4 refers to “all” representative games not “some” or “eight” and the court should give effect to it. Secondly, if the parties had intended that 9.4 would be qualified by 9.7 they would have said so. 9.4 has one qualification already, that relating to material breach, and it would have been easy to add others had the parties wished to do so. Next, 9.7 addresses additional obligations to release players during release periods well in advance of the games. It is not suggested, of course, that the players could ever just turn up on the day or be expected to without the equivalent of a release period but those details are for further discussion and agreement when arranging additional features. Schedule 10, RFU says, covers the release period for matches and tournaments expressly referred to but not “all representative games” as set out in 9.4. RFU says that if 9.4 was limited, as PRL alleges, it would serve no function in the LFA.[39]RFU say that PRL are wrong to suggest that the Agreement would, if RFU’s case was right, give RFU an absolute right to schedule as many Internationals as it could find opponents. He points out that the RFU, as events have shown, is very limited in practice by 9.5, by the IRB and/or the Six Nations Committee which schedule Internationals and, of course, by common sense. It says that it is improbable the RFU or the PRL would enter into an agreement which conflicts with IRB 9 or its supporting provisions. PRL’s approach, it says, conflicts with the IRB and it is no answer to a provision expressly referred to, to say that it is controversial or not consistent with the organisation of modern rugby.

DECISION OF THE COURT

[40]In my judgment the approach of the RFU is to be preferred to that of the PRL for the following reasons.[41]First, the LFA is a detailed and comprehensive contract running to many pages entered into for the reasons given in its recitals. It is, as I said earlier, the product of lengthy and careful negotiation by sophisticated parties with access to the advice of the very experienced lawyers who prepared it. It is not the hurried sheet of paper written by business people which this court often has to evaluate. At least as a starting point one expects clauses to mean what they say when set out in a document such as the LFA.[42]Secondly, the LFA is no doubt a compromise between conflicting interests; so are most contracts. It is pointless to dig around for and rely on statements that one or other party was producing in the period before an agreement was entered into in order to find out what that Agreement was intended to mean. The process of negotiation refines the issues. Circumstances change and the parties’ give and take to reach a deal which may or may not reflect their original aspirations. That is mainly why material of this kind is inadmissible. I do not deduce from the background in this case any factors which should prevent the carefully chosen words used in the contract having their natural meaning in context. The desire for stability was no doubt firmly in the minds of the parties when they entered into the FLA. No doubt too was a degree of flexibility. How that stability was to be achieved is a different matter and one arrives at that by interpreting the contract in the conventional way. PRL’s or RFU’s particular perceptions of stability and flexibility are not to displace the wording of the contract if that wording is clear.[43]Thirdly, clause 9.4 is explicit and emphatic. If it was to be qualified or limited in scope, I would expect the clause of a subsequent one to say so expressly. It does not do that. 9.7 does not restrict the breadth of 9.4. Schedule 10, which applies only because no agreement to replace it has been reached, does not indicate that it is the only funnel through which 9.4 rights are to be channelled (and one would not expect a schedule to do so). It does seem to me that if in such a detailed document 9.7 was to qualify 9.4, thus giving the clause little or no practical function, this would have been made explicit.[44]Fourthly, there are detailed points on the other clauses which I have mentioned. 9.5 qualifies 9.4 and this may indicate that clause 9.7 does so too. But that is only a pointer. Clause 9.5 also imposed limits on a player of eight Internationals in a season or 10 in a year. But under Schedule 10 there may also be more than eight Internationals in a year. I do not think that the substance of 9.5 takes things much further for either side and it is directed mainly at protecting the players rather than at the balance between RFU and PRL. These further points on other clauses which counsel for the parties have rightly drawn attention to do not all point one way. If they did, there would, of course, be no case to bring to court. Each one has an answer but none of them is decisive.[45]Fifthly, like counsel for the RFU, I attach some importance to clause 16, the further assurance clause. While the provision is in fairly standard wording, not every commercial contract has a further assurance clause. Even if it is in standard form, the clause still has a meaning and a purpose. The contract expressly recognises that further agreements may be necessary to give effect to the LFA. There is no reason why one of those agreements should not give effect to a release for an England representative game not falling within Schedule 10. There are as RFU has pointed out indications in the documents that there may well be Internationals fixed beyond those contained in Schedule 10.[46]Sixthly, I am unmoved by the particular legal principles to which Mr. Parfitt has given emphasis in his submissions. He very ably and skilfully urges the court not to take too literal an approach and cites the speech of Lord Steyn in the case of Sirius Insurance Co. v. FAI General Insurance [2004] 1WLR 3251 particularly at 3257 and 3258. Lord Steyn says this:
“There has been a shift from literal methods of interpretation towards a more commercial approach.” -- He then cites the well-known words of Lord Diplock – “‘if detailed semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.’”
[47]After another citation Lord Steyn says this:
“The tendency should therefore generally speaking be against literalism. What is literalism?” – and he gives an example. – “The example is as follows: the tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them all alive. This is literalism.”
[48]It seems to me that in this context we are a world away from the literalism which Lord Steyn had in mind. Of the authorities referred to me one other observation worth drawing attention to is that contained in Lord Hoffmann’s speech in BCCI v Ali [2002] 1AC 251 at 269:
“…. ‘But the primary source for understanding what the parties meant is their language interpreted in accordance with conventional usage: we do not easily accept that people have made linguistic mistakes, particularly in formal documents.’ I was certainly not encouraging a trawl through ‘background’ which could not have made a reasonable person think that the parties must have departed from conventional usage.”
[49]There is in my judgment no warrant for departing from the conventional usage of language. Nor, as I see it, is there any departure from business common sense in giving effect to this clear provision. If the PRL and the RFU have indeed agreed that players will be released for all Internationals unlimited by clause 9.7 but subject to resolving the details, this seems to me to be entirely consistent with common sense and would be welcomed by all other parties except, possibly, England’s less confident opponents.[50]It is not necessary for my decision to consider the effect of Mr. Pannick QC’s argument that clause 3 requires the LFA to be interpreted consistently with IRB Rules. I observe only that IRB regulation 9 – controversial though it may be – suggests that there is nothing illogical or out of place in the meaning I have attached to 9.4 in its context.[51]For all those reasons the application for declaration (a) in the list of four in paragraph 5 is refused. PRL sought a declaration that “Clause 9.4 of the LFA applies only to the release periods specified pursuant to clause 9.7 of the LFA unless agreed otherwise ….”

OTHER CLAIMS

[52]Three other declarations are sought. The first is an application for a declaration that “(b) The 8 release periods described in paragraph 1.1.1 of Schedule 10 of the LFA apply to the 3 regular Autumn Internationals provided for by the IRB scheduled International season and the 5 Six Nation matches and no other matches ….”[53]I have mentioned PRL’s claim derives from their submission that a common assumption or, as they call it, a settled expectation exists, that the eight release periods in Schedule 10 will be the three autumn and five Six Nations fixtures. That is probably, if not certainly, where the concept of 8 release periods came from. But that is, it seems to me, no justification for reading such a restriction into Schedule 10. It would have been easy to specify in Schedule 10 that the eight release periods were those specific fixtures or at least to refer to those fixtures in that Schedule. In contrast the Schedule goes on in other passages, as I have pointed out, to be very specific indeed, right down to the postponed England v. Ireland match in 2000/2001.[54]PRL’s argument does not convince me and I will refuse that declaration.[55]The final two declarations run together. There are applications for declarations that “(c) Any decision as to which England 1st XV International matches are the subject of the 8 release periods described in 1.1.1 of Schedule 10 of the LFA is for the second defendant” – that is England Rugby – “to take and not the first defendant; alternatively to this declaration (d) Under the LFA the first defendant has no right to determine to which England 1st XV matches the release periods described in paragraph 1.1.1 correspond.”[56]The answer must lie in 9.7 and Schedule 10. 9.7 begins “The Parties agree” and then goes on “that England Rugby will have the authority to set the release periods”. So clearly PRL are right to suggest that England Rugby have the principal responsibility for the setting of the release periods in the circumstances set out in more detail in that clause. But there is a sentence at the end which says “Until England Rugby decides and implements applicable release periods for the EPS players, the release periods set out in Schedule 10 shall apply.”[57]Thus England Rugby’s role only starts once it has entered into decision mode and implemented new release periods. For so long as the parties are dependent upon Schedule 10, that Schedule is triggered, it seems to me, when RFU schedules a fixture. Paragraph 1 is linked to participation in rugby squads organised by the RFU. The RFU has, by clause 3.1, sole responsibility for International fixtures. The definition of release period is triggered in effect by the timing of International matches which are the responsibility of RFU.

CONCLUSION

[58]So there will be no declarations and this application is dismissed.[59]I am grateful to Mr. Pannick QC and Mr. Green for the RFU and Mr. Parfitt for PRL and to their solicitors for their help.[60]Finally, it is not helpful for a judge, knowing only part of the picture, to urge parties who have come to court in good faith, after careful consideration and after taking wise advice, simply to go off and resolve their differences. I will, however, point this out. The implementation of the RFU’s rights under 9.4 will require agreement or, if there is no agreement, conceivably more litigation. That litigation would be, as we call it, “interesting” and therefore extremely expensive. The parties have other areas of this contract where negotiation is required. They do not yet appear to have reached agreement via ERL for the release periods under 9.7. Furthermore, fresh agreement will be needed in the medium term because the LFA may come to an end within three years. All that process of negotiation and agreement requires collaboration and cooperation between the parties which this court can do nothing to supply. It seems common sense to suggest that the sooner that begins the better. (For discussion after judgment: see separate transcript)[61]I do not consider that the appeal would have a real prospect of success but, of course, I may be wrong. I am going to refuse permission to appeal but, of course, you are entirely free to apply to the Court of Appeal. You will also be able to make that application otherwise than on the hoof as you have just had to do in just a few minutes after a long judgment.[62]Your application is refused but, of course, you can apply to the Court of Appeal. (For further discussion after judgment: see separate transcript)[63]This is not a run-of-the-mill one-day case and the sums of money are comparatively high. They are amounts of a size which some courts spend days resolving if they are the subject of civil disputes.[64]Next, the schedules are detailed so far as they go but it does not follow that one side’s costs can simply be taken to be a figure no more than the others. When the lawyers are incurring costs, they incur costs that are recoverable and those that are not. I have no doubt that both these bills are good value for the clients of each set of lawyers given the importance of the matters which faced their clients.[65]But the question is how much, what proportion of those costs should be paid by the losing party? There may be elements in this case, for example, the witness statements, where it was entirely reasonable for the work to be done, to get a grip of the subject matter and for that and related reasons. It may be some aspects of that work were strictly unnecessary and not recoverable.[66]I decline to assess such large sums of money on a summary basis not because I think they are excessive in any way; I have not got any reason to believe that at all. It is simply they are quite large sums and if there is to be an assessment then it seems to me it has to be done in detail, not summarily.[67]I will, however, make an order for a payment on account of a proportion of the sum claimed. What I will do is make an order for payment of £60,000 in the normal way within 14 days. Otherwise the matter will go off for a detailed assessment which, in the real world, with sophisticated solicitors like those here, will mean that in all likelihood they will be able to sort it out between themselves. MR. GREEN: My Lord, thank you very much for your time. JUDGE MACKIE: Anything else? (No response) Thank you all very much. MR. PARFITT: Thank you. --------------------