“Q. So you’re very careful to take steps to avoid being seen to target young people. A. I can say our responsible marketing framework has an intended audience of 25-plus consumers. Q. Not people under the age of 21, obviously. A. Our marketing materials are intended for a 25-plus audience.”
“Q. In that paragraph 12, you sort of summarise what some of these steps are, and you say the first is never to leverage athletes in your advertising. So, as I understand it, you try and avoid using any athletes or other celebrities in your marketing regardless of their age; is that right? A. That is correct, we do not feature any celebrities, athletes, influencers or famous people in any of our marketing materials. Q. And that’s because you understand the sensitivity about that? A. That is because that is our internal practice associated with any brand that we have within our portfolio. Q. Yes, but because you understand the sensitivity, using a sportsperson or a celebrity or an influencer might encourage young people to follow; that’s why you do it, I suppose, isn’t it? A. Once you use many of these individuals, the content is out in the realm and you leverage their network. We want to refrain from having any association to the celebrities or famous people or athletes themselves, therefore do not feature any of them in any of our marketing materials. ... Q. But would you agree with me it would be even worse to use a 19-year-old? A. I believe that’s a completely hypothetical situation, in which we would -- a question of age would never come in because it would never be something we would consider in our marketing materials.”
“It is what happens in the sport ... It is part of what we do”
“It is necessary next to consider some basic principles of the law relating to damages for breach of contract: principles which it will be necessary to bear in mind at a later stage of this judgment, when considering [the case of Attorney General v Blake] and its aftermath. Damages in contract serve a different remedial purpose from damages in tort, reflecting the different nature of the obligation breached by the wrongdoer in each case. The law of tort is concerned with civil wrongs, that is to say with breaches of duties imposed by the law, sometimes generally and sometimes on those who are party to particular relationships or have assumed particular responsibilities, which protect the interests of others in respect of such matters as their bodily integrity, their liberty, their property, their privacy and their reputation. Damages in tort are generally intended to place the claimant as nearly as possible in the same position as he would have been in if the tort had not been committed. The law of contract, on the other hand, gives effect to consensual agreements entered into by particular individuals in their own interests. Remedies granted by the courts are designed to give effect to what was voluntarily undertaken by the parties. Damages in contract are therefore intended to place the claimant in the same position as he would have been in if the contract had been performed.”
“I have already concluded that the Fund would not have been entitled to put either manager on gardening leave as a matter of the true construction of the IMAA. It would also have been impractical to have put both on gardening leave, because clause 26 of the IMAA provided for exclusivity in terms which prevented the Fund from appointing anyone else to perform the services whilst the IMAA remained in force. Appointing a new manager without terminating the IMAA was therefore not an option. It is impermissible for QOGT to seek to calculate damages on the counterfactual hypothesis that the Fund would have acted in a way which was not permitted by the IMAA. Damages do not fall to be assessed on the footing that if the contract breaker had not been in breach, he would have acted in a way which was a different breach of contract. On the contrary, damages are intended to put the innocent party in the position he would have been in had the contract been performed. Damages are to be assessed by valuing the contractual rights which the innocent party has lost by reason of the breach, not by valuing the benefit of conduct to which the innocent party was not entitled under the contract: see The Golden Victory[2007] 2 AC 353 , especially at [30],[32] and [37].”
“The correct picture of the law on proof in relation to damages is therefore that where the uncertainty is as to past fact, the ‘all or nothing balance of probabilities’ test applies. Where the uncertainty is as to the future, proportionate damages are appropriate. Where the uncertainty is as to hypothetical events, the correct test to be applied depends on the nature of the uncertainty: if it is uncertainty as to what the claimant would have done, the all or nothing balance of probabilities test applies; if it is as to what a third party would have done, damages are assessed proportionately according to the chances.”
“Two important consequences flow from the application of this balance of probabilities test to the question what the client would have done, in receipt of competent advice. The first is that it gives rise to an all or nothing outcome, in the usual way. If he proves upon the narrowest balance that he would have brought the relevant claim within time, the client suffers no discount in the value of the claim by reason of the substantial possibility that he might not have done so: see Stuart-Smith LJ in the Allied Maples case[1995] 1 WLR 1602 , 1610G-H. By the same token, if he fails, however narrowly, to prove that he would have taken the requisite initiating action, the client gets nothing on account of the less than 50% chance that he might have done so.”
“Where the claimant relies on more than one hypothetical event in a no breach counterfactual to establish causation, the events in the chain must be separately assessed. Only an event which involves the actions of one or more third parties is [to] be assessed by reference [to] a chance – so that the assessment becomes whether on the balance of probability there would have been a significant chance of that event occurring.”
“(7) Where damages are sought at common law for breach of contract, it is for the claimant to establish that a loss has been incurred, in the sense that he is in a less favourable situation, either economically or in some other respect, than he would have been in if the contract had been performed. (8) Where the breach of a contractual obligation has caused the claimant to suffer economic loss, that loss should be measured or estimated as accurately and reliably as the nature of the case permits. The law is tolerant of imprecision where the loss is incapable of precise measurement, and there are also a variety of legal principles which can assist the claimant in cases where there is a paucity of evidence. (9) Where the claimant’s interest in the performance of a contract is purely economic, and he cannot establish that any economic loss has resulted from its breach, the normal inference is that he has not suffered any loss. In that event, he cannot be awarded more than nominal damages. … (12) Common law damages for breach of contract are not a matter of discretion. They are claimed as of right, and they are awarded or refused on the basis of legal principle.”
“When a claimant’s right to claim compensation depends on proving a causal connection between a breach of a duty owed by the defendant and harm suffered by the claimant, the law uses counterfactual reasoning to determine whether the necessary causal connection has been shown. A comparison is made between what actually happened and what would have happened if the breach had not occurred. The purpose of the comparison is to identify with precision those consequences, if any, of the defendant’s conduct for which the defendant should (subject to any further limiting factors) be held responsible. It is worth spelling out in a little more detail what the exercise involves. The first step is to identify the specific duty of which the defendant was in breach and the particular conduct which constituted the breach. The next step is to construct a hypothetical scenario in which the defendant’s conduct is changed to the minimum extent necessary to achieve compliance with the duty. The court then considers what harm, if any, the claimant would have suffered in that scenario.”
“There are legal principles which may assist a claimant who has difficulty in proving loss. One such principle is that difficulty of estimation should not be allowed to deprive the claimant of a remedy, particularly where that difficulty is itself a result of the defendant’s wrongdoing. Accordingly, the court will attempt as best it can to quantify the claimant’s loss even where precise calculation is impossible. The court may do so by making reasonable assumptions about what the claimant’s financial position would have been if the defendant had complied with its obligation to the claimant. A second principle is that, where the defendant has destroyed or wrongfully prevented or impeded the claimant from adducing relevant evidence, the court will make presumptions in favour of the claimant. The classic illustration of this principle is the old case of Armory v Delamirie (1722) 1 Strange 505; 93 ER 664, where a chimney sweeper’s boy found a jewel and took it to the defendant’s shop to find out what it was. The defendant did not return the jewel but only the empty socket, and was held liable to pay damages to the boy. Experts gave evidence about the value of the jewel which the socket could have accommodated. According to the case report: ‘The Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did.’”
“These principles can help a claimant to overcome evidential difficulties in proving damages. There is a limit, however, to how far they can be taken. They may assist in resolving uncertainties where evidence is not reasonably available but they do not enable the court to conjure facts out of the air and they have little role to play where evidence could reasonably have been obtained, or has in fact been adduced. They may give the claimant a fair wind, but not a free ride.”
“I have come to the clear conclusion that it is quite impossible to forecast, so as to provide a reliable basis for computing losses, what the box-office takings are likely to be for a film, whether in the US or beyond, which has yet to be released, which, at the time of the trial, had not even been completed and which none of the independent experts giving evidence before me had seen in any shape or form and, if they had, would not have possessed the relevant expertise to comment on.”
“it is fair to resolve uncertainties about what would have happened but for the defendant’s wrongdoing by making reasonable assumptions which err, if anything, on the side of generosity to the claimant where it is the defendant’s wrongdoing that has created those uncertainties”
“In the case before me, the question which I have to answer is as to whether, on the assumption that The Painting is not in fact visibly inferior to the other versions, M. Rosenberg [the expert], upon seeing it, would have been prepared to go beyond his usual ‘see my book’ response, and to deliver a positive verdict on the autograph status of The Painting. On the facts I consider this to be unlikely. However, it is by no means impossible, and I note that he appears to have done exactly that as regards ‘La Gouvernante’. I think that this is therefore a case where Mr Onslow’s fair wind sends the overall conclusion to the point that we assume that M. Rosenberg gives The Painting his public endorsement – that is, that he delivers one of the first two responses identified above.”
“Where it is shown that loss has (factually) been caused by the defendant’s breach of a duty of care, five principles are capable of limiting the damages recoverable by the claimant. They are: (i) the scope of the duty; (ii) remoteness; (iii) intervening cause; (iv) failure to mitigate; and (v) contributory negligence.”
“In our view, the correct analysis is that once the claimant has proved that a tort has been committed and that the loss claimed was in fact caused by the defendant’s breach of duty, it is for the defendant to assert and prove that one, or more, of the principles mentioned at para 23 above applies to limit the damages recoverable by the claimant.”
“Logically, therefore, the legal burden of proof must likewise lie on the defendant to plead and prove that loss which was in fact caused by the defendant’s tort is nevertheless irrecoverable because it is too remote.”
“The underlying justification for this approach rests, as we see it, on considerations of both fairness and efficiency. Once it has been proved that the defendant has committed a wrong which has caused loss to the claimant, it is fair to place the onus on the wrongdoer to show a good reason why the wrongdoer should not be liable to compensate the victim for the full extent of the loss caused. In addition, it would be unduly burdensome to require a claimant who has proved that the defendant committed a tort which has caused the claimant loss to have to anticipate ways in which it might nevertheless be said that the defendant should not be held legally responsible for the loss and rebut them. It is far more efficient, as well as just, to place the burden on the defendant to make such a case.”
“The general issue is in my view appropriately stated as being whether any profit or loss arose out of or was sufficiently closely connected with the breach to require to be brought into account in assessing damages. Resolution of that issue involves taking into account all the circumstances, including the nature and effects of the breach and the nature of the profit or loss, the manner in which it occurred and any intervening or collateral factors which played a part in its occurrence, in order to form a commonsense overall judgment on the sufficiency of the causal nexus between breach and profit or loss.”
“In the common law tradition the phrases and expressions used by judges do not have and should not be accorded the status of the words of a statute. In the Board’s view it is more important to identify what it is that judges have been trying to encapsulate in their choice of language. And that is whether as a question of fact the parties to a contract, or at least the defendant, reasonably contemplated, if they applied their minds to the possibility of breach when formulating the terms of the contract, that breach might cause a particular type of loss.”
“First, in principle the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if his or her rights had been observed. But secondly, the party in a breach of contract is entitled to recover only such part of the loss actually resulting as was, at the time the contract was made, reasonably contemplated as liable to result from the breach. To be recoverable, the type of loss must have been reasonably contemplated as a serious possibility, in the sense discussed in paras 27 and 28 above. Thirdly, what was reasonably contemplated depends upon the knowledge which the parties possessed at that time or, in any event, which the party, who later commits the breach, then possessed. Fourthly, the test to be applied is an objective one. One asks what the defendant must be taken to have had in his or her contemplation rather than only what he or she actually contemplated. In other words, one assumes that the defendant at the time the contract was made had thought about the consequences of its breach. Fifthly, the criterion for deciding what the defendant must be taken to have had in his or her contemplation as the result of a breach of their contract is a factual one.”
“It does not matter, in my judgment, if they thought that the chance of physical injury, loss of profit, loss of market, or other loss as the case may be, was slight, or that the odds were against it, provided they contemplated as a serious possibility the type of consequence, not necessarily the specific consequence, that ensued upon breach.”
“A type or kind of loss is not too remote a consequence of a breach of contract if, at the time of contracting (and on the assumption that the parties actually foresaw the breach in question), it was within their reasonable contemplation as a not unlikely result of that breach”, “The reference to ‘the loss’ in the formulation of the test for remoteness of damage is to be interpreted as the type or kind of loss in question. The ‘party who has suffered damage does not have to show that the contract-breaker ought to have contemplated, as being not unlikely, the precise detail of the damage or the precise manner of its happening. It is enough if he should have contemplated that damage of that kind is not unlikely.’”
“Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.”
“[I]f there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice. It is where, and only where, the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed.”
“The respondents would have been perfectly entitled, as a matter of business morals, to hold the sub-purchasers to their bargain and make them pay damages if they did not take the goods. But it is wholly unreasonable to say that that would be the ordinary course of business which they ought to pursue to diminish the damages. People have not to consider what is right in a strict court of conscience; they have to consider the effect of their conduct upon their business relations with other people, and I have little doubt that it would not have suited the respondents’ business, nor would it be reasonable as a matter of business to require them, to do what is suggested in order to diminish the damages, if prima facie they are entitled to recover damages from the defendants.”
“In this case I do not think that it would be reasonable to ask the respondents to sue their sub-purchasers and to insist upon the conclusive evidence clause when by the hypothesis they had learned that the bill of lading was in fact untruly dated. The damage might have been minimised to this extent, that the Indian sub-purchasers would have had no defence; but a person is not obliged to minimise damages on behalf of another who has broken his contract, if by doing so he would, as I think might have happened here, have injured his commercial reputation by getting a bad name in the trade.”
“I am of opinion that the so-called duty to mitigate does not go so far as to oblige the injured party, even under an indemnity, to embark on a complicated and difficult piece of litigation against a third party.”
“(1) In order for a benefit to be taken into account in reducing the loss recoverable by the innocent party for a breach of contract, it is generally speaking a necessary condition that the benefit is caused by the breach … (3) The test is whether the breach has caused the benefit; it is not sufficient if the breach has merely provided the occasion or context for the innocent party to obtain the benefit, or merely triggered his doing so … (5) The fact that a mitigating step, by way of action or inaction, may be a reasonable and sensible business decision with a view to reducing the impact of the breach, does not of itself render it one which is sufficiently caused by the breach. … (6) Whilst a mitigation analysis requires a sufficient causal connection between the breach and the mitigating step, it is not sufficient merely to show in two stages that there is (a) a causative nexus between breach and mitigating step and (b) a causative nexus between mitigating step and benefit. The inquiry is also for a direct causative connection between breach and benefit … Accordingly, benefits flowing from a step taken in reasonable mitigation of loss are to be taken into account only if and to the extent they are caused by the breach.”
“In some cases of mitigation, the court is concerned with additional benefits which a claimant has gained from the mitigation action which it has taken. In such a case, it is for the defendant to show that the benefits should be set off against the prima facie claim of loss.”
“It is no answer to say that, because no claim would lie in restitution (as there was no total failure of consideration), there should equally be no claim for reliance loss. The one does not follow from the other.”
“once I lost Alex I needed to make sure I had my franchise driver, because I was planning on Alex being my franchise driver along with Pato, but when Alex breached, that gave Pato a tonne of leverage and I needed to make sure, if I’m going to pay more, that I get some extension to the contract”
“The situation is you have Alex as your franchise driver, two franchise drivers, if you have Alex secured then you’re at less risk in the market on Pato. When Alex breached, I had to make sure I didn’t run a risk of losing Pato, so I had to respond quickly to secure him longer term, and part of the renegotiation was paying him more immediately; same as that conversation I had with Alex the Monday after the Indy 500”
“I feel we have been very generous. Pato is a star but he has won 4 races … but I think we are offering to pay for results in advance effectively and with the bonus structure would make him one of the highest (if not highest) including branding he can monetise which is also money out of our pocket. Including the f1 testing we are spending a LOT”
“Although not in the press release, we can confirm to you that Alex Palou will be racing for AMSP in the NTT INDYCAR SERIES in 2024 and beyond”
“I also thought you said Alex was signing up for 2024 through 2026. If that term is longer, I would be willing to make the contract coterminous with his”
“Our decision was therefore that, although we would have 1 year at McLaren without Alex driving for us (i.e., during 2023), we were nonetheless happy to enter into the agreement with McLaren on the basis that Alex was contracted to come to McLaren for the 2024 season, as part of the resolution of the dispute mentioned at paragraph 47 above”
“To be absolutely clear, we made our decision to move to McLaren on the basis that Alex was contracted to drive for McLaren in IndyCar for the 2024, 2025 and 2026 seasons. If it had been otherwise, we would not have been willing to enter into an agreement with McLaren”
“there was always a commitment to put him in the car. That was all our conversations around who was going to be our driver, was really around Alex Palou from the start of that until we completed it. Our intent was that Alex – intent was that Alex would be in the car. That’s what we believed that he was coming over to McLaren and he would be our driver”
“I know what verbal agreement and representation I’ve made to NTT and have been in this business long enough to know that integrity and what you said you’re going to do is critically important, whether it’s fully captured in a contract or not, and so I knew had I not resolved what I’ve promised NTT that I would end up with either them potentially saying I’ve breached or looking for an exit, damaging my reputation, McLaren’s reputation.”
“As we have discussed previously, we would have been unlikely to have signed the current contract with a relatively untested driver. No need to belabor the point, but that contract was designed around a championship caliber driver”
“you are all deep in discussion and analysis around the future of our partnerships and other potential partnerships for the future given the global focus of your organisation. We acknowledge the gap in driver equity but have also worked hard to close that with access to all drivers and of course your biggest advocate in TK. We are open to working with you for the future in this area …”
“Well, we’re bringing clients in to have that experience that IndyCar gives them, and a lot of that is access to the drivers, access to the pit crew, access to -- during a race even in the pit crew, but the excitement that builds from a driver that’s winning races, that’s chasing the championship. It’s quite different than if, you know, you’re coming in 15th in the race. So it just makes that experience on the track that much different, and that much better.”
“So, we speculated that we would likely lose our ride for the next year (i.e. 2024) if we did not move in 2022 for the 2023 season.”
“If we stayed with him at CGR for a year, we’d lose the opportunity to sponsor him with McLaren going forward because McLaren would have moved on with another sponsor to cover that hole”
“I wouldn’t say we were happy for him not to be driving the car, but that was the situation that we found ourselves in … we positioned to have him be our driver for the future”
“... the reason why you wouldn’t name a particular driver in a contract because, you know, if the driver were to leave, what happens to the contract between the sponsor and the team? In other words, if you are the team, you would want to retain most of the rights going forward so that if a sponsor left -- sorry, if a driver left, the sponsor would remain and you find another driver. What you don’t want is driver leaves, sponsor leaves... So you would -- the normal thing would be to make sure, if you’re the team, that you try to keep the driver out of it.”
“Sponsor entered into the Agreement and the amendment on the basis that one of McLaren’s three drivers required by clause 2.2 of the Agreement would be Alex Palou. As a result of Alex Palou no longer being a driver ... Sponsor has required that McLaren compensate it in kind ... along with a package to be procured by McLaren from McLaren Racing Limited (‘Racing’) to compensate Sponsor for the unanticipated change in circumstances relating to Alex Palou”
“By this Second Amendment Letter, the parties confirm the following amendments to the Existing Agreement as negotiated and agreed between McLaren and Sponsor”
“Last year we had ten races with the 6 car in the base contract. Two of those have now been eliminated (TMS and IGP2) and replaced with two Milwaukee races. We have little interest in that market and no desire to pick up two races there. We propose dropping down to eight races, plus Thermal, for our base contract fee.”
“… the last thing that you would ever do, is say, ‘I’ll give you some money off your base fee’. That money is what you go racing with. You reduce it -- you would never volunteer to reduce it. You reduce it and then, you know, the cost of doing so is one less front wing that you’re able to bring to a Grand Prix or whatever it might be. That’s the last point of call that you would use.”
“We have little interest in that market and no desire to pick up two races there. We propose dropping down to eight races, plus Thermal, for our base contract fee.”
“Last year we also purchased three additional races on the 7 car. My understanding is that only two of those races (Detroit and Toronto) are available for 2024. We would like to purchase those two races as well”
“The Parties hereto, agree, that as additional consideration and inducement for entering this Second Amendment to the Existing Agreement, Sponsor agrees to enter a third party personal services agreement with a representative, known as Tony Kanaan (‘Representative’) ... The Parties, hereto, have adjusted the Base Fee, in Article 4 above, pursuant to this McLaren request ... This ancillary Sponsor/Representative agreement shall be co-terminus with the Existing Agreement ...”
“Do you want to do something independent with TK as I adjusted the dollars are [sic] do you want us to put TK inside our agreement adjust the dollars back up”
“We don’t need to put an amount in our contract but we need to reference the agreement as they are related. I’ll put some language in and then we will have a separate agreement with TK”
“What I’m saying is there is no point in them paying me 5.375 million and I’m going to go pay Tony 375. We’re better off calling the number 5 million and let them go do whatever deal they want with Tony.”
“I would say again the reason we were renegotiating this was because of the driver not coming. Because Alex didn’t come, it opened this whole renegotiation up, and when contracts get opened up, frequently a broad variety of things get thrown back on the table and so I would say you can’t say it didn’t have anything to do -- we wouldn’t have been there had not the contract been subject to revisiting based on Alex Palou not coming over to McLaren.”
“You kind of re-open it up and put everything on the table; effectively have to re-cut the deal knowing that we’re not going to be able to deliver Alex” and “You work through a lot of scenarios. What they see as value within the McLaren organisation, potentially what drivers.”
“It’s not, you know, just a case of throwing a contract at a sponsor and going, "You will live up to the requirement within it". That’s not how I’ve worked. I don’t think it’s how Mr Brown works. It’s about managing that relationship. It’s about nurturing that relationship and having conversations”
“just throwing contracts in people’s faces doesn’t nurture relationships and it certainly -- when you do find yourself in a position where you lose a driver or a similar such scenario, you want to have built those relationships so it provides you with a really strong foundation where you can move past them through some goodwill gestures”
“the paddock is a very small world and if you aren’t treating your sponsors in the way that they feel they should be, that gets out and it can be damaging to your reputation”
“You look at the drivers currently in the sport and the average age that they started their careers, it’s around the 20 mark. I think the oldest was Lewis Hamilton, my Lord, who started his career at 22. Max Verstappen started at 17. Alex Palou coming into the sport at 27/28, not having had any prior Formula 1 experience, would have been, you know, just crazy”
“[McLaren Indy] acknowledges that GM$500,000 USD of annual team support defined in Exhibit B is dependent on (3) full time ‘A’ level drivers during entirety of this Agreement. This includes Pato O’Ward, Alex Palou, and Alexander Rossi … ‘A’ level drivers defined by both [the First Claimant] and GM by previous years race wins, championship contention, Indy 500 performance, and/or previous open wheel accomplishments. Both parties agree to be reasonable on driver rankings and comparisons”
“[i]n principal [sic], ‘A’ level talent is defined as previous 3 seasons Race wins in Series, championship contention, Indy 500 performance, and/or previous open wheel accomplishments”
“having what I was handed, which was a breach on no notice near the end of the season, which gave me no time to react and I reacted as quickly as I could, two days later making a multi-million dollar offer to Marcus Ericsson, which unfortunately was too late”
“As discussed with Nick, sharing a summary of the sponsorship revenue impact from the change of drivers from Alex Palou as originally planned in the #6 car for the 2024 season to David Malukas. • Previously for both the #5 and #7 cars we had built a total on-car branding revenue rate card for $[REDACTED]m per car. Those have been sold out by available positions/revenue to [REDACTED] and [REDACTED] respectively. • With incoming two-time champion in Palou, the plan was to elevate his rate card to $[REDACTED]m given on-track success and partner interest. We would have expected to at minimum meet the [REDACTED] sell-out figure we historically achieve ($[REDACTED]M), plus raised remaining available #5 and #7 car positions to an equal per position value given the scarcity and packaging intent for new Palou-focused partners, driving an additional $[REDACTED]M total (~$[REDACTED]M) on #5, ~$[REDACTED]M on #6) if forecasted at a similar [REDACTED] sell out. • With the change to Malukas, we were instead forced to stay at the lower $[REDACTED]M rate card where we’re alternatively at a [REDACTED] sell out for his car given significantly less sponsor demand, and have not been able to sell additional #5 and #6 car inventory as planned.” • Previously for both the #5 and #7 cars we had built a total on-car branding revenue rate card for $[REDACTED]m per car. Those have been sold out by available positions/revenue to [REDACTED] and [REDACTED] respectively. • With incoming two-time champion in Palou, the plan was to elevate his rate card to $[REDACTED]m given on-track success and partner interest. We would have expected to at minimum meet the [REDACTED] sell-out figure we historically achieve ($[REDACTED]M), plus raised remaining available #5 and #7 car positions to an equal per position value given the scarcity and packaging intent for new Palou-focused partners, driving an additional $[REDACTED]M total (~$[REDACTED]M) on #5, ~$[REDACTED]M on #6) if forecasted at a similar [REDACTED] sell out. • With the change to Malukas, we were instead forced to stay at the lower $[REDACTED]M rate card where we’re alternatively at a [REDACTED] sell out for his car given significantly less sponsor demand, and have not been able to sell additional #5 and #6 car inventory as planned.”
“Sharing as useful for business plan you are looking at. The $[REDACTED]m was only ever a v high level estimate so I think its [sic] … good if we can demonstrate higher but wanted your view on whether you think this stacks up”
“In the majority of cases, McLaren Indy’s revenue equates to inventory values that exceed those in the Palou 2024 Rate Card. This supports my assumption in my loss calculations that additional sales of Car #6 sponsorship in the Counterfactual Scenario are likely to have been at rates equal to those in the Palou 2024 Rate Card. In light of my analysis in this report, I therefore remain of the view that my approach in this regard is reasonable and appropriate.”
“Mr Steadman agrees that there are many instances where amounts paid by sponsors – if measured principally in relation to inventory branding and ignoring other aspects of the package – is consistent with rates higher than the 2023 rate cards and in other cases consistent or above the Palou 2024 Rate Card”
“I think the only logical scenario in which a sale was prevented by giving these assets to NTT … is that it’s prevented a sale to NTT in the counterfactual scenario”
“I think that’s right and I think I’ve tried to clarify earlier that logically, there can only be a loss in respect of these items if, in the counterfactual scenario, NTT would have purchased it for more than US$500,000 . You know, as I also, I think, acknowledge, there’s limited evidence in respect of whether or not that was likely to happen.”
“I would say the likelihood of Palou winning a further, fourth championship with McLaren (in either 2025, 2026, or 2027) would not have been as high as where he is with CGR. To summarise, I think there is no guarantee that Palou would have been the triple IndyCar Series champion if he had driven for McLaren in 2024. And no guarantee that he would have been champion in the 2025, 2026 and 2027 seasons, but he would almost certainly have won some races. McLaren is not as good a team as CGR, as can be seen from race results”
“I do accept that Alex Palou is a talented driver in his own right and should take some credit himself for his racing performance so I agree with Mr Jakobi that Alex Palou may have won some races with Arrow McLaren in 2024 and beyond, but I do not agree that this could extend to winning the entire IndyCar Championship with Arrow McLaren in 2024 and beyond”
“I think this drama has made us a lot closer … When you break one time with your girlfriend, then you are even better because you understand each other and all of the previous issues. Suddenly it is a better relationship”
“I recognise that it is difficult to project the performance of Arrow McLaren’s drivers in future and/or hypothetical scenarios. I also acknowledge that I do not have the necessary expertise to inform reasonable, subjectively-determined, projections of driver performance”
“Nolan’s still getting comfortable with the car, learning names of his crew and the team, and in general had a lot of noise to cut through to focus on racing last weekend. He’s only going to get stronger and we’re going to surround him with resources from engineering to strength training and more”
“He had a very similar track record to Pato O’Ward coming out of what’s called the Indy NXT, being rookie of the year. He finished, I believe, seventh, in his IndyCar debut or one of his early races at Thermal, and he was also pointed out to me by a gentleman named Richard Dean, who is also the individual who pointed out Lando Norris to me, who was racing in a series called Ginetta at the time, saying ‘This guy’s going to be a future Formula 1 world champion’, and it looks like he’s turned out to be accurate. He drove for him and he said to me, I recall, ‘I’m not sure he’s quite as good as Lando’, referring to he’s damn good whether he’s as good as Lando”
“I think we’re operating in hindsight as to Nolan Siegel’s current performance. At the time we made the decision in our interest in Nolan, he had shown a lot of speed. He was rookie of the year in Indy NXT. He was young. He won Le Mans and so therefore – and again – if you look at Pato O’Ward’s record coming into IndyCar, it was really no greater than Nolan Siegel’s. So I think sitting here today, I don’t have the benefit of hindsight to what I know today to what I knew a few years ago”
“If we didn’t think he had potential performance, we would never get to the second reason”
“Sometimes, yes. Sometimes you don’t have that luxury”
“you have to give him another year to see, because a lot of rookies end up doing better in their second year than their first year. That can happen once they become more familiar with everything”
“In recognition of Sponsor’s importance and interest in strong Driver performance, McLaren will discuss with Sponsor at the Parties’ quarterly steerco meetings, with a standing agenda item to be added to this effect.”
“A. No. As long as they felt comfortable, which would be the case, that it was a performance-driven decision and opportunity, the fact that there was incremental revenue, they’d be happy for us. There’s more money to invest in the team. ... MR JUSTICE PICKEN: But what you’re saying is the sponsor would be aware of that, fine, but would weigh against that the assessment that McLaren has made as a team that, yes, this is an appropriate driver to put in the car. A. Correct.”
“The selection of the driver for IndyCar races is a matter for McLaren. We defer to the judgment of the team as to who should drive our branded car ... I do not recall us expressing any views on or being involved in any driver selection decisions”
“The financial outlays required to make the [REDACTED] and [REDACTED] viable are needless to say considerable and a portion of the justification and value surrounding those numbers are based on receiving the remaining portion of this season without increasing the total required outlay.”
“It shall be unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age.”
“Advertising may not be displayed until it has been approved by INDYCAR. INDYCAR may disapprove advertising for any reason, including, without limitation, advertising which it determines is offensive, inappropriate, illegal, undignified ... or may detract from the interest in any Event and/or the integrity of INDYCAR and/or the NTT INDYCAR SERIES”
“I can tell you right now that there would be zero chance that as an organisation we would ever use a celebrity, an athlete or a famous person in any of our marketing materials. That is a categorical statement and not influenced by age”
“we apply no product branding to the driver themselves. We have taken that specific line of demarcation in our marketing principles. That is our approach”
“that line has been drawn to also include the materials that they wear, specific to this partnership. So we have opted to use corporate branding and therefore not product specific branding. The product specific branding is limited to the vehicle itself”
“No one wears it on their overalls and it’s just a policy that they’ve always had with us… they don’t allow drivers or celebrities to market their brands”
“I don’t make that distinction. This is something BAT and RJV do. They understand the regulation and what is appropriate… we take the lead from BAT and RJV’s legal counsel, legal teams”
“BAT or RJV know the regulation and they would have flagged something if they’re uncomfortable with it”
“I checked with him and he consulted with Mr Austin DeLucia and I posed the question “It’s okay to submit this livery for the #6 car?”
“Q. Third proposition, if McLaren had raised properly the question of Nolan Siegel’s age in respect of the Sonsio Grand Prix livery, there’s at least a possibility that IndyCar might have objected to it. A. There was a possibility, probably, yes.”
“I don’t know the exact timing, but I believe it was, you know, a number of weeks in discussion. I don’t believe it was a last minute thing”
“If McLaren exercises the Option then: 1. The US$200,000 ... shall be treated as an advance payment of US$100,000 ... against the 2025 fees in each of the Driving Agreement (clause 3.1.1) and Promotions Agreement (clause 3.1.1) ... If McLaren does not exercise the Option, Driveco shall be entitled to retain the US$200,000 ...”