The Flying Music Company Ltd v Theater Entertainment SA & Ors [2017] EWHC 3192 (QB)

Claim No HQ14X02094[2017] EWHC 3192 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 December 2017
Before
MR MARTIN GRIFFITHS QC(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Between
THE FLYING MUSIC COMPANY LIMITEDClaimantTHEATER ENTERTAINMENT SADefendantsVANESSA ADAMDefendantMICHAIL ADAMDefendant
GARY HODKINSON (instructed by the Claimant on a direct access basis) for ClaimantThe Second Defendant in person, and representing the First Defendant under CPR 39.6 for in personHearing Hearing dates: 4-6 December 2017
JUDGMENTMartin Griffiths QC:
[1]The Claimant, The Flying Music Company Limited (“the Company”), is a live entertainment promoter and a producer of theatrical productions. Among the Company’s productions is “Thriller Live”, a West End show based on the music of Michael Jackson, which has toured internationally for some years.[2]The First Defendant, Theater Entertainment SA (“Theater Entertainment”) is a theatrical promoter based in Greece. It is no longer trading, but remains in existence as a legal entity. The Second Defendant (“Mrs Adam”) is a managing director of Theater Entertainment. The Third Defendant (“Mr Adam”) is her husband, and he is also a managing director of Theater Entertainment. “Badminton Theatre” was originally named as a Fourth Defendant but it is a building and not a legal entity and so I dismissed the action against the Fourth Defendant on the first day of the trial.[3]This case arises from a contract dated 21 May 2010 (“the Contract”) by which it was agreed that Theater Entertainment would put on “Thriller Live” for a series of performances at the Concert Hall, Thessaloniki (the city also sometimes called in English Thessalonica or Salonica) between 1-6 June 2010, and at the Badminton Theater, Athens, between 9-28 June 2010. May to June 2010 was a period of civil unrest and disturbance in Greece, because of austerity measures imposed in return for support from the European Union and the International Monetary Fund.[4]In the event, only 3 performances took place in Thessaloniki (instead of the 8 planned) and only 16 took place in Athens (instead of the 24 planned). The Thessaloniki run was abbreviated to 4-6 June (instead of 1-6 June) and included none of the planned matinée performances. The Athens run took place in full 9-21 June (including all the matinées) but the end of the run was cancelled (23-28 June).[5]The case also arises from a personal guarantee signed by Mr and Mrs Adam on 18 June 2010 (“the Guarantee”).

Procedural history

[6]The Claim Form was issued on 22 May 2014. An application for summary judgment was heard and dismissed by Master McCloud in January 2016. A trial was due to take place in October 2017, but the Defendants’ solicitors came off the record in August 2017 and the Defendants have had no solicitors on the record since then. The trial was adjourned for a short time to allow the Defendants to prepare. The trial took place before me on 4-6 December 2017. At the trial, Mrs Adam represented herself and also represented Theater Entertainment, pursuant to CPR 39.6. Mr Adam did not appear or give evidence, and was technically unrepresented, but the evidence and submissions put forward by Mrs Adam effectively represented his interests as well, no separate points being pleaded in relation to him on either side.[7]Mr Gary Hodkinson of Counsel appeared for the Company. He struck an excellent balance between representing the interests of his client and assisting the Court and the Defendants with his knowledge of the law, in circumstances where the Defendants were not legally represented. Mrs Adam, as it happens, was admitted to the Bar in the State of New York in 1991 and to practise before the Federal Bench in 1994, but she has for over 20 years made her living as a businesswoman in the entertainment industry rather than practising law, and has never been qualified in English law. She presented her case clearly and courteously and filed a 12 page skeleton argument at the outset which discussed applicable English law and authorities.

The issues

[8]The issues for me to decide are as follows:- (1). Issues on the Contract:-(a) Was the Contract frustrated?(b) If so, when?(c) What is the effect of the frustration? (2) Issues on the Guarantee:- (a) Was the Guarantee supported by consideration? (b) Was the Guarantee voidable for duress? (3) Issue on the Counterclaim: Should the Claimant repay €15,000 to Theater Entertainment on the basis of unjust enrichment? (4) Quantum issues.

The evidence

[9]At the trial, I heard evidence from four witnesses called by the Company, and from Mrs Adam on behalf of the Defendants. All these witnesses were cross examined. I was also given hearsay witness statements supported by signed and dated Statements of Truth from one witness for the Claimant, and five witnesses for the Defendant, who were overseas or otherwise in difficulty in attending as witnesses. It was accepted that, since I was not able to observe these witnesses, and there was also no opportunity to cross examine them, their evidence might carry less weight than it would if they had been called to give evidence.[10]I was referred to a number of documents, including contemporaneous correspondence, but there were gaps in the email disclosure from the Claimant, because of difficulties they have had with their servers in the years since the events in question. Mrs Adam also put in a number of documents and statements about the troubles in Greece in May and June 2010, including some detailed information about dates, times, and places of demonstrations, marches and rallies in Athens in May and June and the numbers attending; some press reports from the BBC and other news organisations; and a statement of the Athens road closures in May and June 2010, with a separate selection of the particular days with the largest number of demonstrators. I return to this evidence, below.[11]The principal witnesses giving live evidence were Paul Walden (a director of the Claimant), Ian Melding (the bookings manager of the Claimant in 2010, who had direct dealings with Mrs Adam as events unfolded) and Mrs Adam herself (who was the main contact between the Claimant and the Defendants at the material times). I have considered and evaluated, of course, all the evidence, but I will say a little about my impression of these three key witnesses before turning to a narrative of the facts.[12]Mr Walden seemed to have had few if any relevant direct dealings with Mrs Adam. His evidence was in many places more a speculative reconstruction than an actual recollection of material events in relation to the matters in issue. He was based in London and did not travel to Greece, and he had no personal knowledge of (and seemed to take little direct interest in) the events on the ground there. His concern was always to collect the monies due under the contract. Day to day matters were left to others, such as the Company’s man on the ground in Greece, Richard Ross (who did not give evidence but from whom I had a witness statement), and Mr Melding in London. Insofar as he referred to things of which he had no direct knowledge, I did not find Mr Walden a reliable or convincing witness; partly because of his lack of direct knowledge, partly because of his general lack of interest in anything except the money side, and partly because his evidence was qualified and tentative.[13]Mr Melding was an important witness but his evidence was brief. His witness statement was the one prepared for the summary judgment proceedings and dated 1 June 2015, and it was also relatively brief. By the time he was cross examined, his recollection was not perfect, and the matters in question would have been less important to him than they were to Mrs Adam, so it is not surprising that he could not remember some details. He is unlikely to have remembered precise words used in oral conversations in the way that Mrs Adam might. He was a careful and honest witness, in my judgment, but his evidence could only be as reliable as his memory.[14]Mrs Adam was, in my judgment, a convincing witness. She was highly engaged in the events in question, and her evidence in cross examination was coherent and consistent. She made a number of admissions against her own interest, which supported my impression that she was honest. It is right to say that there were inconsistencies between her evidence and her pleadings. However, this could have been because of misunderstandings by those drafting the original and amended Defence and Counterclaim. The Statements of Truth were not signed personally by Mrs or Mr Adam. The fact that, when Mrs Adam was referred to pleadings that took points she was not taking, she did not try and adopt or revive those points, supported my general impression that she was saying exactly what she really thought and remembered when she gave evidence, and did not tailor her evidence in order to support a false case. She was a confident and spirited witness. She agreed with many of the points put to her, but not all. At some points it was put to Mrs Adam that she was lying, based on inconsistencies between her evidence and the evidence of Mr Walden and Mr Melding, or on her saying things that had not been said before. I, however, reject that accusation, as she did. The new points she made were in answer to questions, rather than being volunteered. She indicated that she had not previously thought them relevant, sometimes because she did not think they amounted to defences in law. I will consider some particular points of disagreement when dealing with the facts of the case, below but, in general terms, when there were conflicts of evidence, I preferred the evidence of Mrs Adam. (1). Issues on the Contract: Frustration[15]The issues on the Contract are: whether the Contract was frustrated; if so, when, and what is the effect of the frustration.

The doctrine of frustration

[16]Per Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 729:
“...frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”
[17]Bingham LJ summarised the authorities into five propositions in The Super Servant Two (J. Lauritzen AS v Wijsmuller BV) [1990] 1 Lloyd’s Rep 1, 8, as follows:- “1. The doctrine of frustration was evolved to mitigate the rigour of the common law’s insistence on literal performance of absolute promises (Hirji Mulji v. Cheong Yue Steamship Co. Ltd. (sub nom. Dharsi Nanji v. Cheong Yue Steamship Co. Ltd.), (1926) 24 Ll.L.Rep. 209 at p. 213, col. 2; [1926] A.C. 497 at p. 510: Denny Mott and Dickson Ltd. v. James B. Fraser & Co. Ltd., [1944] A.C. 265 at p. 275; Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd., (1941) 70 Ll.L.Rep. 1 at p. 12, col. 2; [1942] A.C. 154 at p. 171). The object of the doctrine was to give effect to the demands of justice, to achieve a just and reasonable result, to do what is reasonable and fair, as an expedient to escape from injustice where such would result from enforcement of a contract in its literal terms after a significant change in circumstances (Hirji Mulji, sup., at p. 213, col. 2; p. 510; Joseph Constantine Steamship Line Ltd. (sup.), at p. 18, col. 2; p. 23, col. 1; pp. 183, 193; National Carriers Ltd. v. Panalpina (Northern) Ltd., [1981] A.C. 675 at p. 701). 2. Since the effect of frustration is to kill the contract and discharge the parties from further liability under it, the doctrine is not to be lightly invoked, must be kept within very narrow limits and ought not to be extended (Bank Line Ltd. v. Arthur Capel & Co., [1919] A.C. 435 at p. 459; Davis Contractors Ltd. sup., at pp. 715, 727; Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. (The Nema), [1981] 2 Lloyd’s Rep. 239 at p. 253, col. 2; [1982] A.C. 724 at 752). 3. Frustration brings the contract to an end forthwith, without more and automatically (Hirji Mulji, sup. at pp. 211, 212; pp. 505, 509; Maritime National Fish Ltd. v. Ocean Trawlers Ltd., (1935) 51 Ll.L.Rep. 299 at p. 302; [1935] A.C. 524 at p. 527; Joseph Constantine Steamship Line Ltd. sup., at pp. 9, 11, 12, 20, 25; pp. 163, 170, 171, 187, 200; Denny Mott & Dickson Ltd. sup. at p. 274). 4. The essence of frustration is that it should not be due to the act or election of the party seeking to rely on it (Hirji Mulji, sup., at p. 213; p. 510; Maritime National Fish Ltd. sup. at p. 303; p. 530; Joseph Constantine Steamship Ltd. sup., at p. 12; p. 170; Denny Mott & Dickson Ltd. sup., at p. 274; Davis Contractors Ltd. sup., at p. 728. A frustrating event must be some outside event or extraneous change of situation (Paal Wilson & Co. A/S v. Partenreederi Hannah Blumenthal (The Hannah Blumenthal), [1983] 1 Lloyd’s Rep. 103 at p. 112; [1983] 1 A.C. 854 at p. 909). 5. A frustrating event must take place without blame or fault on the side of the party seeking to rely on it (Bank Line Ltd. sup., at 452; Joseph Constantine Steamship Ltd. sup., at p. 12; p. 171; Davis Contractors Ltd. sup., at p. 729; The Hannah Blumenthal, [1982] 1 Lloyd’s Rep. 582 at p. 592; [1983] 1 Lloyd’s Rep. 103 at p. 112; [1983] 1 A.C. 854 at pp. 882, 909).”[18]Since frustration terminates the contract without fault or recourse on either side, it alters the effect of the frustrating event on the parties’ rights and obligations. After the allegedly frustrating event, one party will be better off if the contract continues to apply, while another will be better off if it is immediately terminated by the doctrine of frustration. To that extent, it alters the bargain between the parties, and that is why it only applies when the frustrating event can truly be said to take the situation outside the reasonable contemplation of the parties so as to make it just that the contract no longer applies. In a commercial contract, which allocates the risk of future events between the parties by agreement, it is particularly important not to pronounce a general absolution from contractual obligations simply on the basis of unexpected events. Most bargains would be struck differently with the benefit of hindsight. It is not the function of the doctrine of frustration to re-write contracts with the benefit of hindsight in every case. To do so, even on the basis of some assessment of a just and reasonable result, would be to undermine the certainty and purpose of commercial relations and agreements, which are commonly doing business in uncertain environments without knowing which side will benefit most from the deal, and which side may come to regret it. On the other hand, when events entirely overtake the deal, the doctrine of frustration has its place.[19]Per Lord Somervell of Harrow in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 733:- “Contracts to be performed in futuro are based on expectations. lf each party is equally well informed as to the data on which expectations must be based, it may be said that these expectations are the "basis" or "footing" on which the contract is made. It would, of course, be absurd to suggest that if such expectations are not realized the "basis" has gone and the contract is frustrated. As Lord Sumner said in Larrinaga & Co. v. Société Franco-Américaine des Phosphates de Medulla (1923) 92 LJKB 455, 464; 39 TLR 316:
"In effect most forward contracts can be regarded as a form of commercial insurance, in which every event is intended to be at the risk of one party or another."
Later he said 92 LJKB 455, 465: "No one can tell how long a spell of commercial depression may last; no suspense can be more harassing than the vagaries of foreign exchanges, but contracts are made for the purpose of fixing the incidence of such risks in advance, and their occurrence only makes it the more necessary to uphold a contract and not to make them the ground for discharging it."”[20]Rix LJ considered how the balance should be struck in The Sea Angel (Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage & Towage) Ltd) [2007] EWCA Civ 547 [2007] 2 All ER (Comm) 634 at paragraphs 111-113 as follows:
“[111] In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix or context, the parties' knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of contract, at any rate so far as these can be ascribed mutually and objectively, and then the nature of the supervening event, and the parties' reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances. Since the subject matter of the doctrine of frustration is contract, and contracts are about the allocation of risk, and since the allocation and assumption of risk is not simply a matter of express or implied provision but may also depend on less easily defined matters such as 'the contemplation of the parties', the application of the doctrine can often be a difficult one. In such circumstances, the test of 'radically different' is important: it tells us that the doctrine is not to be lightly invoked; that mere incidence of expense or delay or onerousness is not sufficient; and that there has to be as it were a break in identity between the contract as provided for and contemplated and its performance in the new circumstances. [112] What the 'radically different' test, however, does not in itself tell us is that the doctrine is one of justice, as has been repeatedly affirmed on the highest authority. Ultimately the application of the test cannot safely be performed without the consequences of the decision, one way or the other, being measured against the demands of justice. Part of that calculation is the consideration that the frustration of a contract may well mean that the contractual allocation of risk is reversed. A time charter is a good example. Under such a charter, the risk of delay, subject to express provision for the cessation of hire under an off-hire clause, is absolutely on the charterer. If, however, a charter is frustrated by delay, then the risk of delay is wholly reversed: the delay now falls on the owner. If the provisions of a contract in their literal sense are to make way for the absolving effect of frustration, then that must, in my judgment, be in the interests of justice and not against those interests. Since the purpose of the doctrine is to do justice, then its application cannot be divorced from considerations of justice. Those considerations are among the most important of the factors which a tribunal has to bear in mind. [113] Mr Hamblen submitted that whereas the demands of justice play an underlying role, they should not be overstated. He referred the court to Chitty on Contracts (29th edn, 2004) vol 1 pp 1315–1316 (para 23-008) ('But this appeal to the demands of justice should not be taken to suggest that the court has a broad absolving power whenever a change of circumstances causes hardship to one of the contracting parties . . . Such a test is too wide, and gives too much discretion to the court'). I respectfully agree. Mr Hamblen also referred to Treitel Frustration and Force Majeure (2nd edn, 2004) p 645 (para 16-009 ('The “theory” does not, in other words, supersede the rules which determine the circumstances in which the doctrine of frustration operates'). I would again respectfully agree, as long as it is not sought to apply those rules as though they are expected to lead one automatically, and without an exercise of judgment, to a determined answer without consideration of the demands of justice.”

The context of the Contract

[21]In the present case, the Contract was not signed until 21 May 2010, and the parties agree that there was no legally binding agreement in place until that date. There had, however, been quite a long run up to the conclusion of this agreement, and ticket sales and marketing in Greece had already begun before the Contract was concluded on 21 May. Since the events in Greece had also begun before 21 May, it is necessary to examine this chronology.[22]Mrs Adam saw “Thriller Live” in London in March 2010 and on 15 March 2010 started discussions with the Company’s booking agent, Mr Melding, about the possibility of taking on a production of the show in Greece. These discussions progressed in March and April. Mrs Adam particularly had her eye on the first anniversary of Michael Jackson’s death, in June 2010, which did not leave much time.[23]A one-page Deal Memo is in the papers with illegible signatures dated 19 and 28 April 2010, but it is clear from Mrs Adam’s witness statement (paragraphs 15-16) and her evidence in cross examination (“It did not seem relevant, as the deal changed”) that the Deal Memo terms were not set in stone, and negotiations continued in May. Because of the shortness of time, the parties agreed promotion and even ticket sales could begin before the Contract was finalised. Ticket sales began on Saturday 24 April 2010 in Athens (and on 3 May in Thessaloniki).[24]On 26 April, Mrs Adam emailed Mr Melding, saying “We went on sale on Saturday” and “...although the phones didn’t ring off the hook there was a big buzz in town and 18 tickets sold”. On 27 April 2010 Mrs Adam responded to a query about the level of interest from Mr Melding, saying “I think we have only about 50 tickets sold... but no one is buying in advance so I don’t worry”.[25]According to Mrs Adam’s witness statement, “During the month of April 2010 Greece was beginning to show signs of trouble and discontent among the citizens as it was becoming evident that there could be economic difficulties ahead, to such an extent that business would close down due to violence and civil unrest.” However, “It was not apparent at that time that the situation in Greece could be violent and utterly disrupt the entire social fabric or economic balance of a nation.”[26]On 1 May 2010, quoting Mrs Adam’s witness statement, “the rallies in support of May Day turned violent and riot police were called in to control the violent crowds in both Athens and Thessaloniki”. The so-called “Troika” of the International Monetary Fund, the European Union and the European Central Bank were insisting on unpopular austerity measures as a condition of providing support to the Greek economy. A million people (according to figures provided by Mrs Adam) demonstrated at the US Embassy in Syntagma Square. BBC reports put the numbers lower, but still in thousands. According to a Daily Mail report on 1 May, which Mrs Adam has put in evidence, “More than half of Greeks say they will take to the streets again if the government agrees to the robust measures, according to an ALCO poll.”[27]On 3 May, as I have said, Thessaloniki ticket sales started, while attempts to sell tickets in Athens also continued.[28]Mrs Adam’s evidence is that “Between 1 May and 5 May 2010 the country began a period of violent episodes primarily focussed in Athens and Thessaloniki. The climax of this first period of violence occurred on 5 May...” On 5 May, Mrs Adam’s documentary evidence shows that 10,000 people protested at the Parliament building. A BBC report of 5 May included in Mrs Adam’s evidence noted “Three killed in Greece protests” and commented “It is very difficult to predict which way the situation is going. This is a very volatile country... the fear is that the campaign to defeat the government will escalate”.[29]On 6 May 2010, there were 8,000 people at the Parliament building. The press reported President Carolos Papoulias saying “Our country has reached the edge of the abyss.”[30]On 11 May 2010, Mrs Adam emailed Mr Melding, saying “we are redoing the ticket sales to be realistic with the way things are going here and needless to say, it doesn’t look good... I know this is a terrible thing to come at you with but I have no choice but to ask for a reconsideration on the 4 weeks guaranty... we are clearly in trouble here in Greece. I didn’t think I would need to ask but looking at what will happen to the numbers as we scramble to cut the prices leaves me in a bad position of never meeting the budget if it doesn’t go well... I want to keep this a week and then three in Athens as we are planned as I do think it can happen well if we bring the prices down...”[31]On 13 May 2010, there were multiple emails in which Mrs Adam renegotiated the figures and agreed easier payment terms with Melding. She wrote:
“Again, I must say how sorry I am that we are in this kind of trouble here but just as we have been fine in the recent past, this country will be fine again and it is good to know I can work with people like your company who get this.”
[32]Mrs Adam’s statement says that on or about 14 May “Mr Melding and I did speak regarding a concern for the anticipated performances in June 2010 both for financial reasons as tickets were not selling as well for the practicality of making the tour a reality, we both really wanted this to work, but actually had no idea of what was ahead of us. It was becoming clear day by day that my company may be unable to make payments as suggested, although a contract was not yet in place.”[33]On 15 May 2010, 50,000 people demonstrated at the Parliament. On 19 May 2010, Theater Entertainment made a first payment of €52,500. This was the initial payment required by the Contract which was concluded on 21 May 2010. It is common ground that there was no legally binding contract until 21 May, despite everything that was being done in anticipation of it.[34]On or about 18 May, according to Mrs Adam’s evidence, “I began speaking to Mr Melding about slashing all ticket prices and potential revenue in order to try to entice the public to attend the show anticipated to open in Thessaloniki on 1 June 2010... To remove all consideration that the lack of sales was due to price sensitivity given the appearance of the economic difficulties suddenly facing the country, Mr Melding agreed a complete change in ticket pricing to 25€ a ticket in all zones... and 20€ for students.”[35]On 20 May 2010, 8,000 people demonstrated in Syntagma Square. The BBC reported “Thousands of Greeks have protested in the centre of the capital, Athens, as part of a general strike...” Mrs Adam’s evidence is that “On 20 May 2010 there was a massive nationwide strike bringing the country to a grinding halt and further violence and vandalism ensued. Strikes and demonstrations had started to become a common occurrence but the violence that accompanied the nationwide strike and demonstrations were growing in frequency. It was evident that the trouble was growing and the citizens of the large cities were slowly becoming afraid to go anywhere due to the trouble and the difficulties with transportation as well as the financial restraints starting to be strongly felt in every sector of society.”[36]On 21 May 2010 the Contract was signed.[37]On the same day, 21 May, Mrs Adam sent Mr Melding an email, saying:
“...I have to talk about the reality here. No one is buying tickets to anything” “The reality is that we sold about 500 tickets until today and we should have sold over 10,000 to see that the market is going ok - not even good. In March we talked about the fact that these days there are no pre-sales in Greece but I didn’t mean zero...” “...this is about as difficult a time as this country has since anyone can remember.” “I will have a report in tonight from the box office and hopefully it will show that sales did something today even it if is at this incredibly ridiculously low price.”

The terms of the Contract

[38]The Contract was expressly governed by the law of England and Wales, and conferred exclusive jurisdiction on the Courts of England and Wales.[39]The terms of the Contract included the following.[40]A full schedule of performances in Thessaloniki and Athens was set out, including dates and times, and ticket prices (although, as I have said, it was agreed that the prices should be cut even before the Contract was signed). In terms of expenses, the Contract agreed what the Company would pay for, and what Theater Entertainment would pay for. It was also agreed who would do what: Theater Entertainment providing the venues, for example, and the Company providing the performers.[41]It was agreed that a Fee of €350,000 (sometimes referred to by Mrs Adam as the guaranty, as in her email of 11 May) would be paid by Theater Entertainment to the Company in instalments between the date of the Contract and 21 June 2010 (a week before the last day of the run ending on 28 June). It was agreed to split the net income of the shows between Theater Entertainment and the Company, in proportions which were stated. It was also agreed that Theater Entertainment would pay the Company a percentage Royalty (which seems to have referred to intellectual property rights, since rights due to the Greek Performing Right Society were netted off against the gross Royalty percentage).[42]Clause 4, entitled “Non Payment”, provided as follows:- “i). In the event that [Theater Entertainment] has not made any payment... due to [the Company] under this Agreement, this Agreement shall be capable of termination by [the Company] subject to and without prejudice to its rights to recover its losses and damages under this Agreement (and in particular to recover the payments due to it as set out in Clause 2). ii). In the event of non-payment, at the time stipulated, of any sum due then [the Company] shall have no obligation to perform hereunder but the monies already paid to [the Company] shall have no obligation to perform hereunder but the monies already paid to [the Company] shall remain [the Company’s] property and any unpaid amounts shall remain payable in full to [the Company].” It is to be noted that (i) and (ii) are disjunctive; that is, the Company was entitled to suspend or cease performances in the event of non payment, whether or not it also exercised its right to terminate the Contract.[43]An integral part of the Contract was an attached Rider, which contained further relevant terms. Clause VI of the Rider was a Force Majeure clause, which stated:- “In the event that performers and the musicians have departed for the Event but are not in a position to perform by reason of sickness, accident, means of transport, act of God, riots, terrorism, civic disorder, martial law, strikes, labour difficulties, epidemics, any act of order of any public authority or any cause similar or dissimilar beyond [the Company’s] control including conditions which are hazardous to anyone in THE UK PARTY then any amount already paid to [the Company] shall remain [the Company’s] property and shall not be refunded to [Theater Entertainment].”[44]It is common ground that the Force Majeure clause did not apply to the events which happened, because Mrs Adam made heroic and successful efforts to keep the show going despite the difficulties created on the ground by the disturbed political situation in Greece. She went beyond the obligations of Theater Entertainment under the Contract in order to achieve this. For example, when it became clear that travel to and from the venue by public transport would be difficult for the cast and crew, she laid on a private bus for them, which was not required of her by the Contract. Therefore, it was never the case that the performers and musicians were “not in a position to perform.” It is to Mrs Adam’s credit that she did this. She exemplified the professional ethos that “the show must go on”. She was also more interested in the welfare of the performers than Mr Walden was, although they were contracted to the Company and not to Theater Entertainment.

Events after the conclusion of the Contract

[45]The Contract was signed on 21 May and the first performance was due to be in Thessaloniki on 1 June. However, disturbances in Greece continued and ticket sales were disappointing.[46]As early as 24 May, Theater Entertainment missed a payment and, on 27 May, Mrs Adam emailed Mr Melding, saying:
“Yes, I can confirm that we will have to cancel the first part of the engagement in Thessaloniki as we do not have any funds to send you this week and therefore I assume you will not put people on the flight.”
It was agreed that the 1-3 June Thessaloniki dates would be cancelled, all the matinées in Thessaloniki would also be cancelled, and there would be a revision of the payment schedule to accommodate Theater Entertainment’s difficulties in raising the money.[47]On 28 May, a flurry of emails shows Mrs Adam rebooking flights for the new dates, and under pressure. Mr Melding responded by email, saying:
“As long as you send the money on Tuesday [i.e. 1 June] and we have confirmation from your bank that it has been sent then we will let everyone get on the plane and head over to you. All the other payments in the schedule must also be strictly adhered to otherwise it would [be] a further breach of the agreement and we would decide if we wanted to proceed with any further shows or cancel the remaining shows and bring everyone back home. For now, it looks like we are on!”
[48]Payment of the first instalment under the revised schedule was missed on 2 June, but it was made shortly after, on 4 June. A further instalment of €50,000 was due on 7 June but was not paid. Money totalling €40,000 was transferred in a series of payments between 9-11 June but, since another €50,000 instalment was due on 11 June, this still left the Company €60,000 short of what it was entitled to by way of instalments of the Fee at that stage, despite the agreed revision of the payment schedule.[49]The Thessaloniki run (albeit that it had started late and there were no matinée performances) concluded on the intended date, with the evening performance on 6 June 2010. The Athens run began on 9 June and was due to continue until 28 June.[50]By 14 June, Mrs Adam had decided that the run could not be completed. She emailed Mr Melding:
“....I do not believe it is prudent to hold the show for the last contracted week of June. There is just not enough audience that can afford even the ridiculously low 25€ ticket price to make it work.” “Unfortunately, as the times have gotten too tough here, it does not make sense to hold on and perform to small audiences...” “We will play this week and the final shows will be on Monday, June 21.” “I assure you that we will find a way to complete our contract obligation to you but I need some time to see how I can manage this.” “...it is a terrible reflection of the situation in Greece right now.”
[51]The Company did not resist the shortening of the run, but it did insist on receiving the payments required under the revised schedule of payment dates. Unfortunately, Theater Entertainment never caught up on the arrears and further instalments fell due. On 15 and 16 June there was a two day nationwide strike in Greece, accompanied by demonstrations.[52]On the evening of Wednesday 16 June, Mr Melding emailed:
“Hi Vanessa. Could you let me know what is happening with the €50,000 that was due on Friday [i.e. 4 June]? You said we would have it by the end of this week but the only payment we have seen so far is €3,000 in cash. We need to see this money coming in over the next couple of days or we are not going to be able to allow the performances to continue over the weekend. I need a decent sized payment sent tomorrow and more on Friday. We are finishing and leaving the country in less than a week and we are still owed over €210,000 and it is making everyone here very nervous and unhappy.”
[53]Mrs Adam replied on the following morning, 17 June, saying:- “I completely understand. As you know I do not take my debt burden lightly. We have been trying to find a way since Monday to do something - anything. I am going in again with accounting in an hour to try to sort something out. My apologies once again.” My apologies once again.”

The Guarantee signed on 18 June

[54]On Friday 18 June, there was no matinée, but there was to be an evening performance in Athens at 9 pm. The email record is incomplete, and there was some disagreement between witnesses about the extent and content of any discussions between Mr Melding and Mrs Adam other than by email. I prefer the evidence of Mrs Adam. She told me that she agreed orally to pay €5,000 on 18 June, €5,000 on 19 June and €10,000 on 20 June, in order to stop the Company pulling the weekend performances (as, by reason of the arrears, it was entitled to). It appears from an email from Mr Melding to Mrs Adam on 18 June timed at 2 pm that this agreement had been discussed the previous day, 17 June. Mrs Adam gave evidence, and I accept, that “There was no further conversation. He [Mr Melding] wanted an assurance, nothing was clarified until the letter came as to what the assurance was. At some point he would get back to me with some kind of guarantee or assurance. The intention was to assure them the company [Theater Entertainment] would do what they could.” I accept Mrs Adam’s evidence that she did not suspect, and was not told, that the Company wanted, or was even thinking of asking, her and her husband to provide personal guarantees in writing of the sums due under the Contract.[55]A series of internal emails passed between Matthew Toms (who did not give evidence), Mr Walden and Mr Melding on the afternoon of Friday 18 June, beginning with Mr Toms sending Mr Walden and Mr Melding an email with the subject line “Letter of Guarantee - Theatre Entertainment S.A.” saying “Please find attached draft letter for your comments”. Mr Walden responded:
“Looks good to me. Ian please get it signed today if they don’t want any disruptions to the schedule of performances over the weekend.”
Mr Melding responded:
“Check with Ben, but I think they have paid €141,000 as they paid some cash advances to the company manager.”
Mr Walden replied at 16.48:
“Pl[ease] clarify but either way it needs to be signed today!”
[56]Meanwhile, Mr Melding’s emails to Mrs Adam did not disclose that personal guarantees were going to be demanded. His emails were titled “payments” and the first I have been shown on 18 June is timed at 14.00 and says:
“Hi Vanessa I have had a meeting with Paul [Walden] this morning and he has said the shows can go ahead over the weekend as long as we receive the cash payments as discussed yesterday. We need to receive the cash before the show (before 4pm). We should receive €5,000 today, €5,000 tomorrow and €10,000 on Sunday. Also, we are putting together a letter that defines where we are at the moment and outlines your intention to fully comply with the payments due under the original Agreement which I will get out to you asap. Please sign and return that today.”
[57]No-one has accused Mr Melding or the Company of bad faith, but it is right to say that this email was inconsistent with what was in fact sent out later in the day. The email I have quoted stated that the performances would be allowed to continue as long as the three cash instalments were paid (in the event, however, they were not paid) whereas Mr Walden later insisted, and Mrs Adam was by email informed, that they would be cancelled unless the proposed letter was also signed. Mr Melding’s email also said that the letter would define “where we are at the moment”, rather than introducing the radical new element that Mr and Mrs Adam would be personally liable as guarantors, instead of Theater Entertainment being solely responsible as it was under the Contract.[58]It is common ground that the Guarantee letter was sent out to Mrs Adam by email, and sent back by email. But the Company has not been able to find the email which sent it out, because of its server difficulties, and it was not in the trial bundle.[59]Nevertheless, there is essentially agreement about what happened. Mrs Adam’s evidence was as follows:
“On the evening of 18 June 2010 after I had left the office for the day and shortly before the performance was due to being that evening, I was called back to the office by Mr Ross [who was the Company’s representative in Greece] and my assistant Ms Drakiki as a matter of urgency. Mr Ross informed me that he was instructed by [the Company’s] London office that he was not permitted to allow the performance to begin that evening if I did not return “a letter” which had apparently been sent to my email very late in the afternoon after I had left the office for the day.” “Upon then checking my emails that evening, I saw an email from Mr Melding requiring that I put this letter on [Theater Entertainment’s] letterhead and it was to be signed by [Mr Adam] and myself and returned to him via email.” “Mr Ross insisted that it must be done immediately or the performance would not take place and the Claimant would not accept the return of the performers. I was under extreme pressure at this point, my only thought was that if the performers were not taken back then I couldn’t possibly guarantee their safety. The only way out of this predicament, I could see, was to sign the letter to ensure the performers were safe in order that the Claimant would accept them back. I printed the letter on [Theater Entertainment’s] letterhead, had it signed, scanned and emailed back to Mr Melding understanding that it meant what I had discussed with Mr Melding during that week being that [Theater Entertainment] would continue in the future to make payments when normality returned to the country. The performances for that weekend took place.”
[60]Although I do not have all the emails, I do have the Guarantee letter. It is dated 18 June and signed by Mr and Mrs Adam. It is headed “Re: Thriller Live (“the Show”)”, and not entitled “Guarantee” or anything of that sort. Paragraph 1 acknowledges that Theater Entertainment is in breach of the Contract by reason of non-payment. Paragraph 2 acknowledges that the Company has complied with the Contract in full. Paragraph 3 then provides personal Guarantees, in these terms:- “We the undersigned, both myself Vanessa Adam as Managing Director of TE and personally, together with Michail Adam as President and Managing Director of the Badminton Theatre, Athens as well as personally, hereby both jointly and severally guarantee the payment of all remaining payments under the Agreement and hereby renew our intention to comply with the Agreement to the fullest extent possible in a timely manner and shall use our best endeavours in all regards in assuring the above.”[61]There is no dispute that this operated to impose personal liability on Mr and Mrs Adam, subject only to the questions of duress and contractual consideration. Mrs Adam maintained in cross examination, as she had said in the witness statement quoted above, that she did not, reading the document quickly, and under pressure of time, and without forewarning, appreciate that this was a personal guarantee which would make her own assets available to meet the liabilities of Theater Entertainment under the Contract. I accept her evidence in that respect. However, having signed the document, she was bound by it (as she accepts), subject to the issues of duress and contractual consideration.[62]The performances then went ahead, ending with the final performance of the agreed shortened run on 21 June 2010.

Was the Contract frustrated by events in Greece?

[63]I have set out in some detail, above, evidence that the situation in Greece was already bad when the Contract was signed on 21 May 2010. After the Contract was signed, trouble continued, but it does not seem to me on the evidence that it got worse. I certainly do not think that it escalated to a point where it became completely different in quality or effect from what was happening before. This is also borne out by the statistics provided in Mrs Adam’s documentary evidence.[64]The table from the Athens Police Department showing numbers of people at particular demonstrations on days in May and June 2010 shows that the biggest demonstrations were before 21 May and not afterwards. Between 1-21 May, there were 5 demonstrations with more than 5,000 people (on 1, 5, 6, 15 and 20 May). Between 21 May and before 1 June there were none with more than 5,000 people. There was one on 2 June with 5,000 people (compared with numbers of 1 million, 10,000, 8,000, 50,000 and 8,000 on the biggest May dates), and after that none reached the 5,000 mark, although there were smaller demonstrations.[65]Similarly, Mrs Adam has provided a helpful table of all the road closures in central Athens in May and June 2010 by reason of demonstrations and intermittent violence. In the 20 days before the Contract was signed on 21 May (i.e. between 1-20 May), there were 11 road closures. In the longer period of 27 days between 21 May and the signing of the Guarantee on 18 June there were only 10 road closures, the last being on 17 June. In the rest of June (i.e. 18-30 June) there were 4 road closures.[66]I have also been given a page listing “the particular days with the largest number of demonstrators. These dates were the significant dates of demonstrations erupting in violence, vandalism and chaos.” Before the signing of the Contract on 21 May, there are 6 dates listed (1, 3, 5, 12, 15 and 20 May). After the Contract, and before the final performance on 21 June, there are only 2 dates listed (31 May and 16 June). After that, only 29 June is listed.[67]I accept Mrs Adam’s evidence that she and others hoped and expected that it might improve, and that they were disappointed in that, but that is a slightly different thing. To say that things did not improve is not to say that they got worse, or even changed. If a bad situation becomes protracted, the consequences may be increased by the passage of time. But that does not mean that there has been a frustrating event. There has, in fact, been no change, and it is the lack of change which increases the consequences of an existing state of affairs. Even if the prolongation of trouble was unexpected, as Mrs Adam says it was to her, it was clearly a possibility, and it was for the parties to make their bargain accordingly.[68]In those circumstances, I am not persuaded on the evidence that the Contract was frustrated. I find that, by the time it was signed, the difficulty was already sufficiently apparent, and it would not be correct in fact or law, applying the principles from the authorities which I have identified, to release the parties from their obligations under the Contract by reason of events after 21 May 2010. There was already unrest. How long it would last was uncertain. Ticket sales had already begun, and they were low. There were already road closures. There were already demonstrations. There was already violence. The Troika had already arrived. Thessaloniki and Athens had already erupted. The parties both knew enough about the risks that this posed to the success of the production for it to be wrong, now, with the benefit of hindsight, to re-allocate those risks by releasing the Theater Entertainment from its Contract obligations. (2). Issues on the Guarantee[69]The issues on the Guarantee are:-(1) Was the Guarantee supported by consideration?(2) Was the Guarantee voidable for duress?

Consideration

[70]The Guarantee was in writing, but it was not under seal. Therefore, in order to be an enforceable contract, it had to be supported by consideration.[71]Both the Defence (at paragraphs 18-19) and the Defendants’ Skeleton Argument for Trial (at paragraphs 19-23) argue that the Guarantee was not supported by consideration, because what the Defendants obtained in exchange for signing the Guarantee had already been agreed.[72]I reject that argument. I have already set out the events leading up to 18 June, and of 18 June itself. The fact was that the Defendants were in arrears and the Claimant was entitled under clause 4 of the Contract not to allow further performances until that position was put right. The Defendants, despite Mrs Adam’s best endeavours, simply could not make ends meet, or find the cash to meet even the reduced and delayed payments which were canvassed in the email correspondence. In particular, having offered to pay €5,000 on 18 June, €5,000 on 19 June and €10,000 on 20 June, in order to stop the Company pulling the weekend performances, she paid the €5,000 on 18 June, but not the €5,000 due on 19 June or the €10,000 due on 20 June. She did pay €6,000 on Monday 21 June, but that was both late, and less than promised. Even if those payments had been made in full, Theater Entertainment would have been in arrears, and the Company would have been entitled to stop the performances at any time. Mrs Adam accepted that. When it was put to her that Mr Melding’s email of 18 June meant that there was a real risk that the Claimant would instruct the cast not to perform, she said “I knew and I didn’t know. They could but they didn’t state it. Every day I knew. Each day was changing.” “He wanted an assurance, nothing was clarified until the letter came in as to what the assurance was.”[73]It was the case, and Mrs Adam knew, that Theater Entertainment was at the Company’s mercy, because of the arrears. The Company was within its rights to stop the performances on and after 18 June. That right had not been waived when the Guarantee was emailed across for signature, and it was made quite clear that signature of the Guarantee was the price the Company required for allowing the performances to continue. Mr and Mrs Adam paid the price by signing the Guarantee. In forbearing to exercise its contractual right to cancel the performances, the Company gave sufficient consideration to support the Guarantee.

Duress

[74]The Defendants’ case on duress has changed. As pleaded, it is based on the following allegation in paragraph 16 of the Defence:- “The Defendants were concerned regarding the safety of the employees, yet the Claimant refused to accept the repatriation of its employees or equipment unless the Letter of Guarantee was signed. To ensure the safety of the employees, the Defendants were compelled to sign the Letter of Guarantee. Such pressure applied by the Claimant was illegitimate.”[75]Master McCloud ordered that this would be struck out unless an Amended Defence was filed with further details. The Amended Defence filed on 1 August 2016 provided further details, starting with a new paragraph 16(a) of the Amended Defence, stating:- “The Claimant stated by telephone on or around [date] that they would inform their employees that they were not permitted to return home if the Defendants did not sign the Guarantee.”[76]Mrs Adam’s witness statement at trial was the one before Master McCloud, and it says that Mr Ross insisted that the Guarantee must be signed “immediately or the performance would not take place and the Claimant would not accept the return of the performers. I was under extreme pressure at this point, my only thought was that if the performers were not taken back then I couldn’t possibly guarantee their safety.”[77]The Defendants’ Skeleton Argument for Trial says “The concern was for the safety of the company members and their pleas to remain under the care of the theatre venue as much as possible due to their repeated insistence to be at the theatre where they felt safer. They could not be left to fend for themselves in the city that was ostensibly under siege by daily shut downs, strikes, demonstrations etc. There was no alternative given by the Claimant to protect their employees if the Letter of Guarantee was not signed...”[78]However, the emails on 18 June, including the internal emails which I have seen, and the emails between Mrs Adam and the Company which I have not seen but which she has referred to in her evidence, made no such threat. They did not mention the position of the Company members in the event that the last performances were cancelled.[79]Mrs Adam does not in her witness statement to Master McCloud say that any such threat was made by telephone, as alleged in the new paragraph 16(a) of the Amended Defence.[80]The witness statement of Richard Ross does not say that he made any such threat, as alleged in the original paragraph 16 of the Amended Defence.[81]In cross examination at the trial before me, Mrs Adam did not maintain the suggestion that there was any overt threat made by anyone. Rather, she said that she drew her own conclusions about the effects of cancellation on the performers, and she was concerned about them. She was concerned that, if there were no more performances, the performers would no longer have the theatre (which was in a secure area, near a military base) as a safe haven. She said “I could not have people cut loose in a city that was so overwrought, I could not have people roaming the city”. She also said in cross examination that she had in mind that the performers were not entitled to payment for shows which did not take place (which is common ground). She said “I was told to sign it and 46 employees were almost crying because they would not get paid.”[82]In closing submissions, Mrs Adam said “It was not a threat by them. It was a duty I took on myself”.[83]Mr Hodkinson for the Claimant did not formally object to this change of case, but opposed it on its merits.[84]The law of duress is based upon threat, and in this case the only threat which is now pointed to is the threat not to allow the performances to continue. That was a threat to exercise what I have found to be the Company’s legal right, given the arrears of payment. It is possible for a threat of action not in itself unlawful to found a claim for duress, but the circumstances in which it will do so are limited and rare. I was referred to Chitty on Contracts (32nd edition) at paragraphs 8-046 to 8-051 on this.[85]The leading case is the judgment of Steyn LJ in CTN Cash and Carry Ltd v Gallaher Ltd [1994] 4 All ER 714. Steyn LJ does not formulate a test for lawful act duress and at p 719d he appears deliberately to refrain from drawing clear lines in what he describes as “this complex and challenging branch of the law”. But it is clear that he regards the applicability of lawful act duress to commercial relationships as limited. He says:- “Outside the field of protected relationships, and in a purely commercial context, it might be a relatively rare case in which 'lawful act duress' can be established. And it might be particularly difficult to establish duress if the defendant bona fide considered that his demand was valid. In this complex and changing branch of the law I deliberately refrain from saying 'never'. But as the law stands, I am satisfied that the defendants' conduct in this case did not amount to duress.”[86]Steyn LJ considers various factors at 717h -718e but he emphasises that the exercise is one of judgment on particular facts, and cannot be reduced to a formula. He says at 717e-g:- “Miss Heilbron cited a number of authorities which illustrate developments in this branch of the law. While I found the exercise of interest, I was reminded of the famous aphorism of Oliver Wendell Holmes that general propositions do not solve concrete cases. It may only be a half-truth, but in my view the true part applies to this case. It is necessary to focus on the distinctive features of this case, and then to ask whether it amounts to a case of duress.”[87]In the present case, as in CTN Cash and Carry, the parties were not in a protected relationship but were conducting arm’s length commercial dealings between two trading companies. The Company was not entitled to the Guarantee, but it was entitled to the payments which were being guaranteed. It was also entitled to cancel the performances and, indeed, it had been so entitled for a considerable time. There is no dispute but that the Company bona fide considered that its demand was valid as, indeed, it was. No suggestion was made to any of the Company’s witnesses that they themselves thought the threat with which their demand for a guarantee was coupled was improper, or that they should have imagined that other reasonable people might think so. Their bona fides were not questioned. The Guarantee was being sought when the run (which had been shortened by Theater Entertainment, and not by the Company) had only a handful of performances left. Although the Guarantee was sprung on Mrs Adam without much warning, she got it by email, she read it, she decided to get it signed, she went to her office, she had it put onto Theater Entertainment letterhead, she and her husband signed it, and she had it scanned and returned by email. The only subsequent email I have been shown on that day is from Mrs Adam to Mr Melding, headed “letter of guaranty” with a photograph attachment (perhaps a photograph of the signed document), timed at 17.44 (but, since it was disclosed by the Company, this may have been equivalent to 19.44 Greek time, which was 2 hours ahead) and the following text:
“Hi Ian Good I live close to work....sometimes it is good, Have a good weekend. V”
[88]This does not convey any sense of outrage, and Mrs Adam did not say in her evidence that she complained about the dilemma she was placed in at the time.[89]In my judgment, the Guarantee was not obtained by duress in the sense that it is voidable. The Company’s threat to stop further performances if the Guarantee letter was not signed was lawful. In the circumstances of repeated payment defaults, low box office receipts, and the imminent early end to the run, it was not improper or illegitimate. I do accept that Mrs Adam felt under pressure, as a matter of fact, when she signed it, and that she did so when paying more attention to the interests of the performers than to the financial interests of herself and her husband, and even without fully appreciating the legal consequences. Many people, including people in her industry, might think better of her for her sense of responsibility. It is unfortunate for Mr and Mrs Adam that her professionalism and compassion for people not contracted to her caused her to enter into a Guarantee she now understandably regrets. However, she is a lawyer, who signed a legal document, which she had read, and there is no dispute about the meaning of the document. The Guarantee is enforceable and the claim that it is voidable, by reason of duress, fails. (3). The Counterclaim[90]The issue on the Counterclaim is whether the Claimant should repay €15,000 to Theater Entertainment on the basis of unjust enrichment.[91]Since the allegations of frustration and duress have failed, the Counterclaim for unjust enrichment fails also. The money received by the Company was money it was entitled to under the Contract and (insofar as it was paid by Mr or Mrs Adam as opposed to the Company) under the Guarantee. In fact, Mrs Adam’s evidence was that all the money was paid by the Company, and none of it, to date, by Mr or Mrs Adam personally under the Guarantee. (4). Quantum[92]The parties by the last day of the trial had substantially agreed all the issues of quantum and interest, reflected in an Updated Schedule of Loss as of 6 December 2017 (the “Updated Schedule of Loss”).[93]Only two issues are unresolved:-(1) Are the Defendants entitled to a credit of €7,000, in addition to the payments to the Claimant acknowledged in the Updated Schedule of Loss?(2) Are the sums claimed in the Updated Schedule of Loss as “The Rider Invoices” due in full or only to the extent of £300 (equivalent to €355.66)?[94]These points also have an impact on the claim for interest, which is otherwise agreed.

Alleged credit of €7,000

[95]When the parties were attempting to agree the final Updated Schedule of Loss in the course of the trial, Mrs Adam suggested that she had provided an additional €7,000 by way of cash float for which the Updated Schedule of Loss fails to give credit. She said in cross examination, after those discussions, that she had received emails from the Company in London asking her to advance money in cash to their representative Richard Ross (in Greece), which was normal, in order to save time and exchange rate complications. The amounts were €3,000, €1,000, €500 and €2,500, therefore totalling €7,000. This was not accepted by the Company. It was not pleaded, it was not contained in the evidence exchanged before the trial, and it was not put to the Company’s witnesses when they were cross examined. The emails referred to were not in the trial bundle. I gave Mrs Adam an opportunity to produce the documents if she could, before the end of the trial, but she was only able to find emails relating to €3,000 or €4,000 of the amount. She frankly accepted, at the end, that “I cannot at this time show that is not part of the payments already accounted for.” In the circumstances, I do not think this claim for additional credit should be allowed, and nor do I think it has been sufficiently proved even if I were to entertain it.

The Rider Invoices

[96]Clause 1B of the Contract provided for Theater Entertainment to provide and pay the costs of certain items, including things specified in the Rider to the Contract. Clause 2Av of the Contract provided that Theater Entertainment would pay the Company recharges as follows:
“In the event the Company incurs costs and/or expenses in fulfilment of [Theater Entertainment’s] obligations under [the Contract] [Theater Entertainment] shall, upon receipt of a recharge invoice from the Company, immediately pay to the Company the full amount as specified in such invoice.”
[97]Paragraph 8 of the Amended Particulars of Claim pleads the obligation contained in that clause, and then refers, without more, to four invoices (one dated 16 June for €355.66, and three others for various amounts dated 7 October) which are annexed. The invoices lack detail and Mrs Adam did not accept that they were sums properly claimed as recharges. She said that Theater Entertainment had the right as well as the obligation to provide the things specified in the Rider at its own expense and as it thought fit, and the Company was not entitled unilaterally to incur a Rider expense, which might be at a higher price than Theater Entertainment could have negotiated given its local knowledge and contacts. She was willing to pay Rider expenses incurred on Theater Entertainment’s behalf only when this had been agreed and approved at the time, including as to amount, or if there had been a failure on Theater Entertainment’s part. This seems to me reasonable, and a correct construction of the Contract.[98]Mrs Adam accepted, on that basis, £300 of the recharge expenses, but no more. This was on the basis of clause 4 of the Rider, which allocated to Theater Entertainment responsibility for set load up and down at both the UK store (to cost £600) and the venues. She accepted, under this head, £300 in respect of an invoice dated 16 July (not 16 June as pleaded) in the sum of €355.66, which is agreed to be equivalent to £300.[99]The other invoices she said did not clearly relate to things attributable to Theater Entertainment under the Rider, and had not in any event been incurred by the Company on Theater Entertainment’s behalf reasonably or by agreement, and she therefore did not accept them. I accept what she said in evidence and I do not find it proved on the balance of probabilities that any sums over and above the admitted €355.66 are properly due to the Company by way of Rider expenses properly and reasonably incurred by the Company on Theater Entertainment’s behalf, or by agreement with Theater Entertainment.

Conclusion

[100]The result is that Claim succeeds (except in respect of the disputed Rider expenses) and the Counterclaim fails. There will be judgment for the Claimant in the sums claimed in the Updated Schedule of Loss, save for the disputed Rider expenses, and for interest at the agreed rate from the agreed date of 22 June 2010. I will hear the parties on a form of Order, and on any consequential matters.

Cited in 1 later judgment