The Rugby Football Union v Viagogo Ltd. [2011] EWHC 764 (QB)

[2011] EWHC 764 (QB)Case No IHQ/11/0049
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/03/2011
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
THE RUGBY FOOTBALL UNIONClaimantVIAGOGO LTDDefendant
Andrew Green QC and Jamie Riley (instructed by Max Bitel Greene) for ClaimantHugh Tomlinson QC (instructed by Berwin Leighton Paisner) for DefendantHearing Hearing date: 21 March 2011
Judgment
[1]There are 82,000 seats in the Claimant’s (“RFU”) Stadium at Twickenham (“the Stadium”). It is the home ground for England international rugby matches, and other matches are played there. There are days when those seats are very much in demand. As the owner of the Stadium, RFU is entitled to decide who can enter it and occupy those seats. Any member of the public who enters without permission is a trespasser. That is so, whether or not they are aware that they are trespassers.[2]Permission to the public to enter premises is generally given by the owners of the premises in the form of a ticket (or, if entry is free, the permission may be called an invitation). Permission is called a licence by lawyers. It does not have to be in writing, but it often is. If it is in writing, then it is usually printed on a permanent medium, such as paper or card. RFU issues paper tickets with bar codes, and these are scanned at the entrances to the Stadium.[3]The permission and the physical medium are distinct. The permission may be revoked or expire even if the physical medium cannot be retrieved from the holder by the owner of the premises. And a person who does not hold a physical ticket may be able to prove to the owner of the premises that he has the permission to enter, even if he has lost the physical ticket, for example by credit card data.[4]RFU is a company incorporated under the Industrial and Provident Societies Act 1965. As the owner of the stadium, RFU could, if it chose, issue tickets at prices designed to maximise profits. But it does not do this. RFU is also the governing body for rugby union in England. As governing body for rugby union, it has responsibilities. Its main object is not to make profits. It does use its right to issue tickets to raise the revenue it needs to operate the Stadium and to cover its expenses. But it also issues them on terms designed to promote and develop the sport. It keeps ticket prices at an affordable level to encourage interest and involvement in the sport by a wide section of the public. And when it does use tickets to raise revenue, in many instances it does so indirectly, by issuing them as part of long term arrangements. These arrangements may be with debenture holders, sponsors and suppliers, and in connection with corporate hospitality packages. So individuals may become ticket holders without having paid cash for the ticket.[5]Individuals who hold tickets may wish to transfer their tickets to other people for many different reasons. RFU raises no objection to ticket holders doing this under certain limited conditions.[6]What RFU does object to is when ticket holders advertise tickets for sale, or when they sell, or attempt to sell, their tickets for a price in excess of the value that appears on the face of the ticket. RFU objects to this, because it considers that that tends to defeat the purpose for which it had kept the price affordable or low, and for which it had itself chosen to forego revenue which it might otherwise have received. I am not concerned with whether RFU are right to take this view or not. It is lawful for RFU to take this view, as is not in dispute. So whether that view is right or wise is irrelevant to these proceedings.[7]When tickets are in demand, there may be many people who are willing to pay more than the face value. Sometimes they are willing to pay many times the face value, especially at times like the present when the England team is doing well. To the extent that RFU has kept the price down to an affordable level, and so to forego revenue, holders will be aware that there is a difference between the face value of the ticket and the price that third parties would be willing to pay on the open market. So holders of tickets may be tempted to sell their ticket at a profit and take the benefit of it in cash, rather than in kind by attending the match.[8]So, RFU has taken steps to try to prevent the resale of tickets at prices above the face value of the ticket. What it has done is to have its lawyers draw up various legal documents, and to print legal wording on the tickets. The intention of this is that the permission to enter the Stadium which is represented by the paper ticket shall automatically expire, or be revoked, in the event that the paper ticket has been advertised for sale, or transferred at a price above its face value.[9]If these legal documents and words achieve that purpose, then any persons who hold a ticket sold at more than its face value will (whether they know it or not) be trespassers if they enter the Stadium. And, on RFU’s case, there will be other wrongs committed as well. It will be necessary to consider these in more detail below.[10]Legal words will not work by themselves. The automatic expiry or revocation of a licence (if such there be) will not appear automatically on the paper ticket. So there has to be a system of control. If the stadium had only 82 seats, like a bus, it might be possible to have each ticket holder checked at entry, or while he or she was in the stadium. That happens on buses, in particular with concessionary tickets. A person boarding a bus may be refused entry if he presents an apparently valid concessionary ticket, but is unable to prove his entitlement to use it. For example, if the ticket is issued for unlimited travel during one day, but on terms that it is not transferable, he may be required to prove that he is the purchaser. If he does not in fact have a valid ticket, he will be a trespasser. This will be so even if he has deceived the driver into believing that he is the purchaser he falsely claims to be. Even if he persuades the bus driver of his entitlement, he may still fail to persuade an inspector. The bus may be kept at a standstill while the trespassing passenger is checked and required to leave the bus.[11]Obviously no such methods of control would be practical at Twickenham. Even if it were possible to have inspectors check the right of holders to enter the Stadium, verifying that the holder had not paid more than the face value would be more complicated than verifying that he is the original recipient. In practice what can be verified by the scanners are simple matters, such as that the paper is not a forgery, or that it is not a ticket valid only in respect of a different date.

The Form of the Order

[12]The information sought as set out in the draft order is as follows: “a) the names and addresses of the people who have advertised for sale and/or sold RFU tickets (“the tickets”) via www.viagogo.co.uk andwww.viagogo.com (“the websites”) and/or via the respondent directly, to the autumn international 2010 matches held at Twickenham Stadium; b) the names and addresses of the people who have advertised and/or sold tickets via the website and/or via the respondent directly to the Six Nations 2011 matches to be held at Twickenham Stadium; c) the full details of all the tickets advertised for sale on the Websites and/or otherwise via the Respondent for the Autumn International 2010 and Six Nations 2011 matches including but not limited to in the case of each Ticket the gate, block, row and seat number and the price at which the Ticket was advertised for sale; d) [similar detail as to the price at which the Ticket was sold].

Viagogo’s business

[13]Viagogo operates a successful online business. It carries on business for profit, and has no other responsibilities. I accept that businesses conducted solely for profit may provide great benefits to the public. But our civic and public life would be much diminished if all businesses were conducted solely for maximising profit. I mention this because the evidence on each side contains passages that are directed to demonstrating that the party concerned is providing a public benefit, and the business, or stance, of the other is to be disapproved in various ways. Since the business models of both parties are in principle lawful, the court is simply not concerned with this debate.[14]Viagogo provides a secondary market for tickets for many different venues and events. Its main business does not involve itself buying and selling tickets. For the most part it offers a place where prospective sellers may record details of tickets they are offering for sale, and prospective buyers may find the tickets they want and buy them directly from the seller. There are many other companies that do business on this model, including eBay, and a number of them are competitors of Viagogo, both generally, and in respect of tickets issued by RFU.[15]Viagogo naturally charge for this service. It may well be that, on occasions when the match is not so popular, tickets are sold and bought for less than their face value. But RFU still object to their tickets being advertised for sale. RFU also objects to sellers and buyers agreeing prices through the Viagogo website which are higher than the face value of the ticket.[16]When sellers advertise RFU tickets for sale, and when buyers do agree to the transfer of RFU’s tickets for a price higher than the face value, it is RFU’s case that various wrongs are committed (that is wrongs under the civil law), and that the licence or permission represented by the ticket automatically expires or is revoked. But nevertheless, the buyer may obtain entry to the Stadium by presenting the ticket, and if he does so, then he does so as a trespasser. So it is RFU’s case that the holder of a ticket who gains entry as a trespasser is a wrongdoer, and that the sale that makes this possible also has the effect of making a number of other people wrongdoers. The wrongdoers may include the seller, and they may include the person or company to whom the paper ticket was first delivered by RFU, and others as well.[17]It is no part of RFU’s case that Viagogo becomes a wrongdoer in this way. RFU has in the past questioned the legality of what Viagogo does when a sale occurs through its website at a price above the face value of the ticket. But in these proceedings no such allegation is made. In these proceedings I assume that Viagogo are innocent of any wrongdoing when such a sale occurs through its website in this way.[18]However it is RFU’s case that when such a sale occurs Viagogo has facilitated, or become mixed up in, the wrongdoing it alleges has been committed by others, and that RFU is therefore entitled to an order of the court requiring Viagogo to disclose information by which RFU might be able to discover the identity of the wrongdoers. An application for such an order is known as a Norwich Pharmacal application (Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133).[19]The principle in Norwich Pharmacal is described in the speech of Lord Reid (at page 175):
"If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."
[20]This application gives rise to four issues: i) Was there arguably wrongdoing? If so, ii) Is RFU intending to try to seek redress for the wrong? If so, iii) Is disclosure of the information to RFU necessary? If so, iv) Should the court exercise its discretion in favour of granting relief?[21]RFU must satisfy a fifth condition, namely to show that Viagogo is involved in the arguable wrongdoing, however innocently. But it is accepted by Viagogo that, if there is arguably wrongdoing, then it has innocently become mixed up in it.

The legal test to be applied

[22]The first point is to establish the applicable legal test. This is not in dispute between the parties. There is no dispute that the standard of proof which an applicant must attain before a Norwich Pharmacal order may be granted is that he has at least an arguable case: see R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2009] 1 WLR 2579; [2008] EWHC 2048 (Admin) (“Binyan Mohammed”) para 67. In AshworthHospital Authority v MGN Ltd [2002] 1 WLR 2033 Lord Woolf CJ said that a claimant must identify “clearly the wrongdoing on which he relies in general terms”. And the parties also agree that the law is as I stated it to be in United Company Rusal v HSBC Bank Plc & Ors [2011] EWHC 404 (QB) at para 52:
“… the court [has] to be as satisfied as it can be, having regard to the limitations which an interlocutory process imposes, that factors exist which allow the court to take jurisdiction, or that the applicant has a much better argument than the defendant. That test is appropriate in Norwich Pharmacal applications.”

Was there arguable wrongdoing?

[23]Mr Green submits that on each occasion that an RFU ticket is offered for sale or sold, there is arguably wrongdoing by multiple wrongdoers in four categories. These are: i) The original applicant for the ticket, for example a club which is a member of RFU, which thereby finds itself in breach of contract, whether or not it is at fault personally; ii) The first recipient of the ticket who receives it from the first applicant, and who likewise finds himself in breach of contract; iii) The seller (who may or may not be the same person as in category ii)) who commits the tort of conversion of the paper ticket and may also be a joint tortfeasor with the person who is to use the ticket to gain entry to the Stadium; iv) The ticket holder who trespasses when the ticket is used to gain entry into the Stadium.[24]It is convenient to start with member clubs. At least half the tickets for the matches at the Stadium are distributed through member clubs. RFU distributes tickets on terms headed “Ticket Distribution Conditions” which include the following: “[RFU] sell and issue tickets for events at the stadium at Rugby Road, Twickenham (“the Stadium”) only upon these Ticket Distribution Conditions and by applying for a ticket, the prospective acquirer (“the purchaser”) shall be deemed to have accepted the following Conditions: 1) A ticket may not be sold or transferred, save if more than one ticket is issued to a purchaser, such tickets may be used only by the purchaser and a person accompanying the purchaser to the Stadium and there shall be no resale or transfer of a ticket above face value. Tickets cannot be advertised for transfer or sale. However, these conditions are not contravened . by provision of an additional ticket by a purchaser to such an accompanying person free of charge, provided that such person accompanies the purchaser to the Stadium and does not transfer the ticket. For the avoidance of doubt, if the purchaser is a sponsor, such “accompanying person” must be a guest of such sponsor; or . if the purchaser is a RFU-licensed hospitality provider, by the provision of a ticket by such operator as part of a package which includes the provision of corporate hospitality services 2) A ticket entitles the holder, subject to compliance with these conditions in all respects to admission to the Stadium for the event, to occupy the seat in question and to no additional entitlement. 3) The RFU sells and issues tickets for events only through the RFU’s authorised ticket sales outlets and its authorised distributors. 4) Any ticket acquired in breach of these Conditions shall be null and void (“unlawful ticket”) and all rights conferred or evidenced by such unlawful ticket shall be extinguished. The RFU shall be entitled to refuse to admit the holder of an unlawful ticket to the Stadium for the event (and for one or more future events or for a fixed term) and may eject such holder from the Stadium even after admission. Any breach of these Conditions by the purchaser and/or the distributor which supplies the tickets to the purchaser shall constitute a breach by the distributor of the Ticket Application Conditions which the distributor has accepted… 8) each purchaser must complete a ticket application form… 10) every ticket remains the property of the RFU at all times”. 1) A ticket may not be sold or transferred, save if more than one ticket is issued to a purchaser, such tickets may be used only by the purchaser and a person accompanying the purchaser to the Stadium and there shall be no resale or transfer of a ticket above face value. Tickets cannot be advertised for transfer or sale. However, these conditions are not contravened . by provision of an additional ticket by a purchaser to such an accompanying person free of charge, provided that such person accompanies the purchaser to the Stadium and does not transfer the ticket. For the avoidance of doubt, if the purchaser is a sponsor, such “accompanying person” must be a guest of such sponsor; or . if the purchaser is a RFU-licensed hospitality provider, by the provision of a ticket by such operator as part of a package which includes the provision of corporate hospitality services 2) A ticket entitles the holder, subject to compliance with these conditions in all respects to admission to the Stadium for the event, to occupy the seat in question and to no additional entitlement. 3) The RFU sells and issues tickets for events only through the RFU’s authorised ticket sales outlets and its authorised distributors. 4) Any ticket acquired in breach of these Conditions shall be null and void (“unlawful ticket”) and all rights conferred or evidenced by such unlawful ticket shall be extinguished. The RFU shall be entitled to refuse to admit the holder of an unlawful ticket to the Stadium for the event (and for one or more future events or for a fixed term) and may eject such holder from the Stadium even after admission. Any breach of these Conditions by the purchaser and/or the distributor which supplies the tickets to the purchaser shall constitute a breach by the distributor of the Ticket Application Conditions which the distributor has accepted… 8) each purchaser must complete a ticket application form… 10) every ticket remains the property of the RFU at all times”.[25]Mr Green submits that the effect of the last sentence of clause 4 is that the distributor is under an absolute obligation. That is to say, the distributor may find itself in breach of contract although in no way at fault itself, if there is a breach of any of the Conditions by the purchaser. Absolute obligations of that kind are known to the law, and can be accepted in a contract. They are, of course, very onerous. Mr Tomlinson submits, amongst other things, that RFU’s case is flawed and unarguable because no such construction can be put upon clause 4 in this case.[26]Before commencing these proceedings, RFU had a number of test purchases carried out. People bought tickets through the Viagogo website. No evidence was found of a breach by a distributor itself in the course of these researches.[27]The Ticket Application Conditions referred to in clause 4 of the Ticket Distribution Conditions exist in various forms. There is one for member clubs, one for Individuals, one for Referee’s Societies and so on. The one for Individuals is headed: “Issued to “individuals” (Debenture Holders, Council, Privileged Members, Past Presidents, Team, Past Internationals, Staff, Rugby Development Officers, RUSLOs, Referees, Stewards, Visiting Unions, Directors for Business, TV/Press, Disabled, Sundries e.g. political, South African High Commission etc)… ”.[28]This gives an indication of the different types of individuals who may receive tickets issued otherwise than purely on an arms length basis. There are in fact 16,000 debenture holders.[29]The “terms of admission” are printed on each ticket and include the following: “The presentation of a ticket in order to gain admission to the Stadium (including the outer concourses)… shall constitute acceptance by the ticket holder of the following terms upon which… RFU will admit the ticket holder: a) TICKETS ARE SOLD OR OTHERWISE ISSUED BY THE RFU ONLY TO APPLICANTS WHO HAVE AGREED TO OBSERVE THE TICKET DISTRIBUTION CONDITIONS (AVAILABLE UPON REQUEST FROM THE RFU TICKET OFFICE). IF ANY TICKET IS ACQUIRED IN BREACH OF SUCH TICKET DISTRIBUTION CONDITIONS, THE RFU MAY REFUSE TO ADMIT SUCH A TICKET HOLDER TO THE STADIUM AND MAY EJECT SUCH TICKET HOLDER FROM THE STADIUM EVEN AFTER ADMISSION AND, IN ADDITION, THE DISTRIBUTOR TO WHOM THE TICKET IS ISSUED BY THE RFU MAY BE LIABLE FOR SANCTIONS IMPOSED BY THE RFU… (g) The ticket remains the property of the RFU at all times… (i) It is prohibited to sell or offer to sell tickets at a price in excess of face value. In addition it is prohibited to advertise the sale of this ticket in any form including on any online auction or any other website. Any such action will result in the cancellation of the ticket”. a) TICKETS ARE SOLD OR OTHERWISE ISSUED BY THE RFU ONLY TO APPLICANTS WHO HAVE AGREED TO OBSERVE THE TICKET DISTRIBUTION CONDITIONS (AVAILABLE UPON REQUEST FROM THE RFU TICKET OFFICE). IF ANY TICKET IS ACQUIRED IN BREACH OF SUCH TICKET DISTRIBUTION CONDITIONS, THE RFU MAY REFUSE TO ADMIT SUCH A TICKET HOLDER TO THE STADIUM AND MAY EJECT SUCH TICKET HOLDER FROM THE STADIUM EVEN AFTER ADMISSION AND, IN ADDITION, THE DISTRIBUTOR TO WHOM THE TICKET IS ISSUED BY THE RFU MAY BE LIABLE FOR SANCTIONS IMPOSED BY THE RFU… (g) The ticket remains the property of the RFU at all times… (i) It is prohibited to sell or offer to sell tickets at a price in excess of face value. In addition it is prohibited to advertise the sale of this ticket in any form including on any online auction or any other website. Any such action will result in the cancellation of the ticket”.[30]When a club applies for tickets the form to be completed includes the following wording:
“Declaration: as confirmation that this application is made on behalf of the club, the club’s President/Chairman/Chief Executive (who must be different from the Ticket Secretary) must sign below. By signing below, you are also acknowledging that you have read, acknowledged and agreed, on behalf of the club the Ticket Application Conditions. Ticket Distribution Conditions, Terms of Admission … which are available on www.rfu.com/tickets...”
[31]Clubs which apply for an allocation of tickets do not themselves acquire title to the tickets. Rather, they become agents of RFU to distribute those tickets. This is provided for by the Ticket Application Conditions for Member Clubs, which include the following:
“…RFU allocates and issues tickets for events and rugby matches at Twickenham to RFU Member Clubs (“Club(s)”) only upon these ticket Application Conditions and by applying for an allocation of tickets the club accepts these Conditions. If a Club has any concern that it may be supplying a ticket to anyone (including a club member) in breach of RFU policy or these Conditions (or the Ticket Distribution Conditions) it should contact the RFU legal department for advice. In these Ticket Application Terms and Conditions the following Definitions will apply:… “Transferee” means a club Licensed Operator Genuine Sponsor or Member [all of which are defined] Applying for Tickets A. The RFU is authorising the Club as its agent to distribute RFU Allocated tickets following receipt of the Club’s application form and bought by the club to Transferees. B. The full price of the tickets applied for must be paid… Transfer of Tickets C. The Club may only transfer a ticket to a Transferee subject to Condition D. The club may charge any Transferee an admission fee of up to £5 per ticket. Other than to a Licensed Operator or under Condition K below, a ticket shall not be supplied (except for the said administration fee) at above face value. D. Only RFU Allocated Tickets may be transferred to Genuine Sponsors… G. The Club must ensure that: 1. The terms are incorporated into all agreements to supply tickets to Transferees. 2. It only supplies tickets to Transferees on terms that those to whom it supplies tickets cannot sell or offer for sale or transfer those tickets.”
In these Ticket Application Terms and Conditions the following Definitions will apply:… Applying for Tickets Transfer of Tickets

G. The Club must ensure that:

[32]So Mr Green submits that the effect of Condition G is that Transferees (as defined) will, through the agency of the club, enter into a contract with RFU. When it does so the Transferee is also to be subject to the absolute obligation, and be in breach of it if there is a sale or offer for sale, or transfer of the tickets, contrary to the applicable provision set out above.[33]Mr Green then submitted that transfer of tickets in breach of the applicable condition set out above would arguably give rise to the tort of conversion. As noted above, the Conditions provide that “the ticket remains the property of the RFU at all times”. Also noted above, the physical medium on which the license or permission is recorded is distinct from the licence or permission itself. So the expiry or revocation of the licence does not affect the property in the physical medium or paper ticket.[34]Mr Green refers to the definition of conversion by transfer of property in Clerk and Lindsell on Torts 20th Edition 17– 15 as follows: “… a person who without authority actually delivers another’s goods to a third party by way of sale or gift, or otherwise in a manner adverse to the right of the person really entitled, … is presumptively guilty of conversion”.[35]He also refers to the law on joint liability, both in relation to the tort of conversion, and in relation to the tort of trespass. In para 4-04 of the same work there is the following: “… concerted action is required. Where one person instigates another to commit a tort they are joint tortfeasors; … ‘All persons in trespass who aid or counsel,direct, or join are joint trespassers’”.[36]He further referred to the statement of the law in Unilever PLC v Gillette (UK) Ltd [1989] RPC 583 at page 609 where Mustill LJ said: “I use the words “common design” because they are readily to hand, but there are other expressions in the cases such as “concerted action” or “agreed on common action” which will serve just as well. The words are not to be construed as if they form part of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. Its enough if the parties combine to secure the doing of acts which in the event prove to be infringement”.[37]This is the authority that supports the proposition stated at the beginning of this judgment, namely that a person or persons will be trespassers if they in fact enter upon another person’s land without permission, whether they intend to commit a trespass or not. It is the intention to enter on the land that gives rise to the wrongdoing. There is no requirement that there should be an intention to commit a wrong. Once a person has entered, or attempted to enter, the Stadium, he must justify his action: the usual way of doing this is to produce a valid ticket for inspection, or to prove a licence or permission by some other means.[38]Thus Mr Green submits that there is an arguable conversion by both seller and buyer.[39]Likewise, Mr Green submits that there is arguably a case of trespass on the part of any holder of a ticket who presents it to obtain entry to the Stadium, and so of joint libility in trespass by the seller who has instigated or procured that the holder do this.[40]Mr Tomlinson submits, as already noted, that the true construction of the Conditions does not have the effect that the club assumes what he refers to as “the extraordinarily onerous” obligation contended for by the RFU. He submits that condition G of the Club Conditions do not require the transferee to enter into an agreement with RFU. He submits that it would be unlikely that would happen, but unless it does happen, the transferee is not bound by any contractual terms.[41]As to the suggested tort of conversion, Mr Tomlinson submits that the suggested interference with the rights of RFU are so trivial as to be outside the scope of the tort. He refers to the dictum of Lord Nicholls in Kuwait Airways v. Iraqi Airways [2002] 2 AC 883 para 39. As a piece of paper, the ticket is valueless and in any event the RFU could recover it at the gate if it chose, but according to the evidence, it does not even seek to do that.[42]As to trespass, Mr Tomlinson makes a number of submissions. He submits it is unclear what happens if the ticket is rendered “void”. He submits that on any view a person entering the Stadium by presenting a ticket which has been sold contrary to the Conditions does have permission: permission is given by the staff at the gate. He submits that the holder would only become a trespasser after being asked to leave and given a reasonable time to do so.[43]In my judgment this submission is unarguable. It treats the physical ticket as being the equivalent of the permission which it records, whereas the two are distinct. The role of staff at a gate is to verify that people attempting to enter the premises already have permission to do so. It is not their role to give permission to a person who does not already have it. The fact that the staff at the gate, and (if it be the case) the holder of the ticket, may think that the ticket evidences a subsisting licence or permission, cannot in my judgment possibly mean that it has effect as valid permission, if in law that permission has lapsed or been revoked. All that has happened is that the staff have been misled, or the holder and the staff are under a common mistake.[44]Further Mr Tomlinson submits that there is insufficient common design for the purpose of giving rise to joint liability and he refers to Credit Lyonnais v ECGD [1998] 1 Lloyds Reports 19, p 35.[45]The critical point for deciding between these arguments is the test to be applied. I am not deciding whether or not Mr Green’s submissions are right or wrong, or whether Mr Tomlinson’s submissions are right or wrong. That is an issue which could only be decided in an action brought, whether in contract or in tort, against a club or against a ticket holder or other person alleged to have committed the breach of contract or the tort. In these proceedings I am only concerned as to whether the RFU has a good arguable case. In my judgment they plainly do for each of the reasons given by Mr Green. Mr Tomlinson’s arguments (other than the one referred to) may also be arguable. But that does not assist Viagogo on this application.[46]As to the tort of conversion, I add this. It is true that the financial value of the paper on which the ticket is printed is insignificant. But the law is not concerned solely with the financial value. There are many things which have no financial value in themselves, but which there are good reasons for the law to protect, for example by injunctions or by orders for delivery up. A ticket is like a key: it opens the door into premises. A traditional metal key has no value as metal, and a modern plastic card which can be used to open secure doors has no value as plastic. But these items have great value as means of ensuring the security of premises and goods. I see no reason why the court should not regard them as deserving protection by the law of conversion.[47]Before leaving this topic, I note the following. Although RFU found no evidence of breach of its Conditions by a club, evidence was found that Viagogo has claimed that such breaches do occur. This emerged in the following way. Having bought tickets online as part of the test purchasing programme, one of the test purchasers received an unsolicited e-mail from a sales representative using an e-mail address ending “@Viagogo.com”. The e-mail included the following:
“As a previous online six nation booker I wanted to take the time to introduce you to the offline Corporate sales team. We offer a free VIP service, a dedicated account manager and better prices than if you book online. Did you need any prices on the upcoming Autumn internationals or six nations?”
Did you need any prices on the upcoming Autumn internationals or six nations?”[48]That was dated 28 September 2010 and the test purchaser replied positively the next day. The same day, 29 September, the sales representative replied: “I can do England v Australia CAT 1 longside for £250 pp inc VAT ”.[49]The test purchaser asked for details and the sales representative replied the same day: “Of course category 1 are the best seats possible … What you see online is fans exchanging tickets, when you buy one you are charged VAT, shipping and an online fee. In the offline corporate team we get our tickets direct from the venue or from the official promoters. So it will certainly work out cheaper and a much better location”.[50]The test purchaser did the deal and paid £500. He duly received two tickets each with a face value of £73. The printing on the ticket showed that it had been distributed through a named Rugby Club, and also gave the name of the individual at that club concerned in the distribution. The tickets arrived by Royal Mail special delivery in an envelope stating that the sender was Viagogo, giving its address in Holborn. This might appear to show that Viagogo was itself the seller, whereas Viagogo’s case is that it is just the facilitator of a sale by a seller. It was not the basis of RFU’s application that Viagogo was a seller, and I do not have to make any findings about this particular sale.

Is RFU Intending to Try to Seek Redress for the Wrong?

[51]Mr Tomlinson rightly reminds the court that the applicant for a Norwich Pharamacal order must demonstrate that the purpose of the application is to enable him to take “some kind of action”. As was said in BSC v. Granada [1981] AC1096 at 1132: “A [claimant] may obtain an order for discovery provided he shows that he is genuinely seeking lawful redress of a wrong and cannot otherwise obtain redress”.[52]That citation is authority for the need for RFU to satisfy me not only on the question I am now considering, but also the question I shall consider next, namely whether disclosure of the information to it is necessary.[53]There have been a number of authorities, which need not be cited, which make clear that the lawful redress of a wrong which a claimant must be seeking does not necessarily have to include redress by commencing legal proceedings. Redress of any kind will do. It may include, for example, warning or dismissing an employee found to have been leaking confidential information.[54]It is a most unusual feature of the present case that the submission that RFU is not intending genuinely to seek lawful redress was put at the forefront of the submissions for Viagogo. Viagogo submit that the real intention of RFU is to use publicity generated by this application to damage its business, in effect by warning off prospective users of the website. Viagogo went so far as to make an application at the start of the hearing that I should hear it in private on the grounds there was such a substantial risk to its business from what it claimed were the allegations of wrongdoing against it which it expected RFU to make during the hearing. Accordingly I enquired of Mr Green whether it was his intention to make allegations of wrongdoing against Viagogo during the hearing. He said that it was not. The application was being pursued on the basis that Viagogo is, like most Norwich Pharmacal defendants, assumed to be innocent of any wrongdoing. On hearing that, Mr Tomlinson did not persist in his application that I sit in private. By that time it may also have been apparent to the parties what view I was likely to take on this application for a private hearing.[55]However, it is the case that, as already mentioned, RFU have strongly questioned the lawfulness of Viagogo’s practices in the past. But having obtained the assurance from Mr Green, Viagogo themselves then ventilated these accusations that RFU had made against itself, in support of its contention that the purpose of the application was to single out its own business for damage, and not to pursue redress against the alleged wrongdoers.[56]I find the prominence given to this point by Viagogo surprising. RFU has clearly gone to a great deal of trouble, and no doubt expense, in drafting these elaborate conditions and seeking to impose them upon clubs and other distributors and ultimate ticket holders. It is hard to imagine any reason why they should not want to seek to enforce them by whatever means of redress, are or might be, available.[57]As already noted, there have been test purchases and these were in fact twenty–one in number, and cost a lot of money. The follow up to these test purchases has been the subject of correspondence between the parties before this application was heard. The RFU states that it has imposed sanctions on a small number of distributors, including by suspending the arrangements by which those organisations obtained tickets. It is true that RFU is uncertain as to what it can or will do about individuals. Much may depend upon any information it obtains pursuant to the order it seeks. Particular attention will be focussed on any advertiser or buyer or seller who appears to be dealing in groups of tickets which are larger than is to be expected of individuals who are holding tickets for the purpose of attending the match by themselves or with guests.[58]I do not propose to spend any further time on dealing with the evidence and submissions advanced in relation to this point. The point has no merit. It may well be that, if an order is made, it will have adverse effects upon the business of Viagogo. But that is not a reason why I should conclude that that is the dominant or indeed any other intention of RFU. Insofar as Mr Tomlinson advanced points based on the drafting of the form of order in this case, those points can be dealt with following the handing down of this judgment.

Is Disclosure of the Information to RFU Necessary?

[59]Mr Tomlinson has cited the words of Lord Bingham in President of the State of Equatorial Guinea v Royal Bank of Scotland [2006] UKPC 7 at para 16: “Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they have no straightforward or available means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must just be convenient in the interests of justice to grant relief or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance”.[60]Viagogo have produced in evidence the privacy policy which it sets out on its website. That policy correctly records that Viagogo may be obliged to disclose information by an order of the court. Nevertheless, I accept that overriding a duty of confidentiality such as is created by the conditions imposed by Viagogo in its privacy policy is a proper matter to consider in this context. However, as Lord Bingham indicates, such orders are commonly made against bankers in circumstances where the duty of confidentiality owed to the customer is no less serious than that owed by Viagogo to its customers.[61]The submission made for Viagogo is that disclosure of the information sought in this case is not necessary for two reasons. First, there are a number of other, better, sources of information available to RFU. And in any event such information as Viagogo expects to be able to provide would not enable any significant number of alleged wrongdoers to be identified.[62]It is submitted that, as appears from the conditions cited above, RFU will have records of the distributors and others who first received tickets, and, it is said, RFU can obtain the information it needs by simply enquiring of those persons. Other alternatives are to continue with test purchases. Information can also be obtained from Viagogo’s competitors and RFU can carry out spot checks at the Stadium.[63]It may indeed be that RFU could do all of these things (other than checks at the Stadium). But they are not realistic alternatives to the application that is made before me. The cost of test purchases is very large indeed and includes payment of the fee or charge which is imposed by Viagogo on its customers. Only small numbers of tickets can effectively be the subject of test purchases. Obtaining information from Viagogo’s competitors is no substitute at all for obtaining it from Viagogo. If RFU is right about there being wrongdoing, then those who commit wrongs through Viagogo’s website will be different from those who commit wrongs through their competitors’ website. The carrying out of spot checks at the Stadium has obvious negative implications. It is not easy to imagine that every person who has gone for an afternoon’s rugby will respond sympathetically to requests for evidence as to how he or she acquired the ticket, or calmly wait in the queue that such checks are likely to give rise to.[64]On the contrary, if RFU is right about wrongdoing, then since the prohibition in their Conditions includes a prohibition on advertising tickets, all of Viagogo’s customers are a self selected group of alleged wrongdoers. It may be that some or all of them are entirely innocent in the sense that, for reasons given by Mr Tomlinson, a court would ultimately find that there has been no wrong doing at all. It may also be that some of Viagogo’s customers are innocent in the more limited sense that they are intending to do what they do, but do not know that it is wrong. That is of no avail to Viagogo for reasons already stated.[65]On the other hand enquiries directed to clubs and other distributors and initial acquirers of tickets would necessarily be directed very widely and include those who have not transferred their tickets at all. There are good reasons why RFU would not wish to conduct so widespread, and so costly, an enquiry. Since the alleged breaches of contract which RFU relies on are breaches of absolute obligations, clubs and others who are alleged to be in breach of contract would not be likely to know that they are in breach, at least in many cases. Those alleged wrongdoers who believed that what they were doing was wrong would be unlikely to be co-operative or frank in the answers they gave.[66]One reason why RFU submits that the information that Viagogo could give would be very useful is that the Terms and Conditions of Viagogo published on its website include the following:
“2.4 Listing. To sell tickets, a seller lists the tickets in the site data base. As part of the listing process the seller assigns a price to the tickets and provides information including but not limited to the event, date, section, seat, row and sale end date all in accordance with the process outlined in the help pages. To list as a seller you must provide a valid credit or debit card”
(emphasis added).[67]Therefore, submits Mr Green, it is clear that Viagogo will have the information to trace prospective sellers. Viagogo respond that, notwithstanding the provisions of clause 2.4, sellers rarely do provide information as to the section, seat or row. This is confirmed by a number of screen shots of Viagogo’s website taken by RFU. It follows, submits Mr Tomlinson, that without that information RFU will not be able to trace or identify alleged wrongdoers higher up the chain.[68]One answer to that point is that, where a seller sells multiple tickets, RFU would be interested in obtaining redress, even if, in the case of sellers of a single or a pair of tickets, it might not. There is a comparison to be made with the way that prosecutions are authorised in cases where there are multiple victims of criminal activity, such as fraud. The prosecuting authorities do not seek to prosecute in respect of every single alleged victim. There will often be sample counts, and focus will be directed upon more serious incidences of wrongdoing.[69]Mr Vaughan, in his witness statement submitted in support of the application, deals with each of the objections raised by Viagogo. He states that RFU is able to find out whether the names of those selling tickets through Viagogo correspond with those of original purchasers, because RFU maintains records of original purchasers. RFU would be able to seek injunctive relief against those re-sellers advertising, or dealing in, quantities which would make such form of redress appropriate. Where the names of those advertising or selling tickets did not correspond with the names of original purchasers, the information would still be of assistance to RFU in seeking to identify who the original purchasers and distributors were, even without further details. If the information retained by Viagogo, as given by the advertiser or seller, is sufficiently specific to identify the original distributor, then RFU can seek redress or sanction the original distributor.[70]I conclude that RFU has no straightforward or available means of finding out the information it seeks by this application, and that the making of the order sought is necessary.

Discretion

[71]If all the other conditions for making the order are satisfied, the court must still have regard to the interests of justice, and whether it ought to make the order sought as a matter of discretion. It is convenient to start with the reasons put forward by Viagogo for not exercising this discretion in favour of RFU.[72]First, it is said that the likely damage to Viagogo’s business resulting from an order is to be contrasted with the absence of any financial damage to RFU as a result of the sales complained of. However, Viagogo has made no attempt to quantify that damage. Viagogo recognise that this is not a decisive factor.[73]Viagogo again refers in this connection to the challenges which RFU has made in the past to the lawfulness of the sales of its tickets through Viagogo. On this application, as I have already indicated, sales between individuals on the website are accepted to be sales which involved Viagogo itself in no wrongdoing. The contrast between the financial damage, which I accept Viagogo might well suffer as a result of any order I might make, with the absence of financial damage on the part of RFU, seems to me to miss the point. As I already indicated, I am simply not concerned with the relative merits of businesses conducted for profit on the one hand, compared with, on the other hand, businesses conducted for other lawful objectives, including the promotion of sport. I have no reason to doubt RFU’s case that the re-sale of tickets, in particular at a price in excess of face value, does undermine its legitimate objective of promoting the sport. The fact that this is not financial damage is immaterial in my judgement.[74]Next Viagogo refers again to the expectation of privacy which its customers are entitled to hold. Viagogo submits that a substantial number of individuals whose data would be communicated to RFU pursuant to any order would “on any sensible view [be] innocent parties”. It explains this in the sense that they are not the original recipients and owe no contractual duties to RFU. On the view that I have taken as to whether there is an arguable case in wrongdoing, none of the customers of Viagogo will be innocent. They may be innocent in a sense that they have not actually done any wrong, and do not intend to do any wrong, because the legal arguments advanced by Viagogo are found to be correct by some judge in the future. The elaborate scheme set out in the various ticket and other conditions may one day be found to be wholly ineffective to achieve the purpose intended by RFU. But I am proceeding on the footing that it is arguable that those Conditions succeed in their purpose. On that assumption all those who advertise tickets through Viagogo are arguably not innocent.[75]Another sense in which a “substantial number” of individuals may be “innocent” is in the sense already referred to above, namely that although they intended to do what they did, namely sell tickets and, in the case of buyers, enter into the Stadium, they do not know that in doing so they would be committing any tort or legal wrong. But innocence in this sense is not relevant.[76]In any event, a reasonable person holding an RFU ticket (however he has acquired it) should not be surprised or aggrieved that RFU wish to know his identity. The identity of individuals who enter onto premises such as the Stadium may be important to the owners of those premises for a number of obvious reasons, including security. And as RFU point out, Viagogo’s Conditions permit it to communicate the personal data of its customers to partner organisations, presumably for marketing purposes. The customers who Viagogo refers to as “innocent” might be presumed to suppose that RFU was a partner of Viagogo, or that RFU had as much interest in using their names for marketing as Viagogo’s partners.[77]Viagogo again return to the points already made and discussed to the effect, as it submits, that much of the information will be of little or no assistance in pursuing redress, that that information is available from other sources and that the case on arguable wrong doing is weak. I have dealt with those arguments above and do not consider that they provide any reason why I should not exercise my discretion in favour of RFU. In any event, I do not accept Viagogo’s submission that the case of RFU is weak, or that the information will be of no assistance in pursuing redress.

Conclusion

[78]For these reasons I shall make the Norwich Pharmacal order sought, subject to any submissions the parties may make as to the detail of drafting.

Cited in 3 later judgments