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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Crystal Palace FC (2000) Ltd v Paterson & Anor [2005] EWCA Civ 180 (03 February 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/180.html Cite as: [2005] EWCA Civ 180

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR BERNARD LIVESEY QC)
(SITTING AS A DEPUTY HIGH COURT JUDGE)

		Royal Courts of Justice Strand London, WC2
		3rd February 2005

Thursday, 3rd February 2005

LORD JUSTICE CLARKE:

Introduction

1. This is an appeal by Crystal Palace FC 2000 Limited which, like the judge, I shall call CP 2000, against part of an order made by Mr Bernard Livesey QC sitting as a Deputy Judge of the High Court in the Chancery Division on 30th July 2004. By that order he directed that two separate sums were payable by CP 2000 to the liquidator of Crystal Palace FC 1986 Limited, which (again like the judge) I shall call CP 1986. The first sum was £61,167, payable by the Football League, to meet the running costs of CP 1986 in the 1999/2000 season. The second sum was £761,732 held by the Football League in respect of performance related and other contingent fees which had become payable under various transfer arrangements. This appeal, which is brought with the permission of the judge, relates only to the second sum of £761,732. I therefore say nothing more about the order for payment of the first sum of 61,167.
2. In form, the application before the judge was an application for directions under section 112 of the Insolvency Act 1986. But in substance it was for the determination of the question whether, as between CP 1986 and CP 2000, CP 1986 was entitled to payment of the sum of £761,732 held by the Football League in respect of contingent fees.

The facts

3. The facts are not in dispute. As found by the judge they are shortly as follows. CP 1986 ran the Crystal Palace Football Club from 1984 to 2000, during which time it was in the first division of the Football League. In the 1990s it suffered financial difficulties which led to an administration order being made on 31st March 1999. While in administration the club remained in the League and continued to compete in the 1999/2000 football season which ended on 9th May 2000 when it played its last fixture of the season. Mr Paterson was one of the two administrators.
4. The administrators entered into negotiations in early 2000 with both the Football League and a prospective purchaser in order to try and secure an orderly sale of the assets of the club to the successor in order to keep it competing in the League. By a business sale agreement, dated 8th May 2000 ("the agreement"), CP 1986 sold a number of its assets to CP 2000, including its single share in the League. Later on, in 2003, CP 1986 went into creditors' voluntary liquidation and Mr Paterson became the liquidator.
5. CP 2000 took over Crystal Palace, which maintained its position in Division One of the Football League until the close of the 2003/2004 season, when it was promoted to the Premiership. In pursuance of Regulation 8.3 of the League Regulations, CP 2000 then ceased to be a member of the League and surrendered its single share, which has now been transferred to one of the clubs which was relegated from the Premiership whose place it now takes there.
6. The issue between the parties is whether, under the terms of the agreement and as between CP 1986 and CP 2000, the contingent fees of £761,732 are payable to CP 1986. There is no dispute about the amount and the Football League has agreed to pay the fees, either to CP 1986 or to CP 2000, depending upon the resolution of the dispute. That resolution depends upon the true construction of the agreement. Like any contract the agreement must be construed in its context and having regard to all relevant surrounding circumstances.
7. Contingent fees become payable in this way. This account is substantially as set out by the judge and is not in dispute. When a footballer is sold by one club to another the contract very often contains, in addition to a capital sum which is to be paid on completion, further fees which are payable depending only on the performance of the player and the club to whom he is sold over a specified future period. There may, for example, be a bonus of say £10,000 to be paid for each series of fifteen matches that the player continues to play for the club, or a bonus for a specified number of goals that he manages to score for the following or any other nominated season, or if the transferee club is promoted into a higher division of the League, or if the player is sold at a higher transfer fee within a number of specified years. Where an obligation is imposed by the contract of transfer to make such a payment to the transferor club, the transferee club is obliged by the League Regulations to make payments to the League, which will then hold the funds in a trustee or quasi-trustee capacity for the benefit of the transferor.
8. The method of payment of such fees is governed by the Football League Regulations by which all members of the League are bound. By Regulation 42.1 all transfer arrangements were required to be reported to the League and were subject to the approval of the board. The regulations further provided, so far as relevant, as follows:

"44 TRANSFER/COMPENSATION FEES - METHOD OF PAYMENT

44.1 All transfer and compensation fees and installments thereof and any subsequent payments which become due under the terms of the original transfer shall be paid direct to The League for immediate onward transmission, where appropriate, to the transferring Club. Prior to such onward transmission they shall not be paid into the Pool Account but held in a separate Transfer Fee Account.

...

45 FEES PAYABLE ON APPEARANCES ETC

45.1 Where, on the transfer of a Player, provision is made for the payment of further sums on the happening of certain specified events (eg after the Player has made a certain number of First Team appearances) it shall be the duty of the Club acquiring the Player to inform both The League and the Club from whom the Player was purchased that the specified events have happened. Unless otherwise specified in the written agreement between the two Clubs, the purchasing Club shall pay to The League within 14 days of the specified events happening the sums of money then due both to the selling Club and to The League. The League shall forthwith on receipt of such sums pay the amount to the selling Club."

9. Before the assets of the business were sold to CP 2000 under the agreement, CP 1986 had entered into a number of contracts for the transfer of a number of players at two different clubs. One of those contracts was entered into in January 2000 which was during the currency of the administration. It was likely that the consequence of these contracts was that there would accrue, after 5th July 2000, a potentially significant amount of performance related fees. The precise amount was, of course, contingent on events. In the result fees in the total sum of £761,732, inclusive of interest to about the date of judgment, accrued after 5th July 2002.

The agreement

10. The crucial clause of the agreement for present purposes is clause 2 which provides so far as relevant as follows:

"2. SALE AND PURCHASE

2.1 Assets

The Seller shall sell and the Buyer shall purchase, with effect from the Transfer Time, such right, title and interest as the Seller may have in and to:

(a) the Chattels:

(b) the Computer Software:

(c) the Contracts:

(d) the Goodwill:

(e) the Association Share and the League Share:

(f) the Know How:

(g) the Motor Vehicles.

(h) the Players' Registrations:

(i) the Rights of Action:

(j) the Sales Information:

(k) the Software Licences:

(l) the Stock: and

(m) the Trade Marks

With the intent that from the Transfer Time the Buyer shall (subject to Clause 2.2) acquire all the assets used in the Business and shall carry on and continue the Business as a going concern in succession to, and to the exclusion of, the Seller.

2.2 Not included in the Assets.

There shall not be included in the Assets and the Buyer shall not acquire with this Agreement any right, title or interest in or to:

(i) any of the property rights or assets of the organisation known as the "Golden Eagles":

(ii) the Statutory Books and the Trading Records (subject to Clause 9.2).

(iii) any freehold or leasehold property other than under the Property Contract:

(iv) any insurance or assurance policies or payments or claims due under the same:

(vi) any pension fund, scheme or arrangement:

(vii) any claims the Seller may have against its officers or former officers:

(viii) the Name: or

(ix) any of the Seller's cash at bank or cash in hand or any of the Seller's book or other debts outstanding at the Transfer Time.

2.3 Risk

All risk in the Assets shall pass to the Buyer at the Transfer Time."

11. Each of the words in capital letters is defined in clause 1 which provides that the words defined shall have the meanings attributed to them. The definitions include:

"Assets means the assets agreed to be sold and purchased under Clause 2:

...

"Business means the business of a professional football club in division one of the Nationwide Football League carried on by the Seller:

...

"Claim means any action, proceeding, claim or demand of any kind (actual or contingent) which may be brought or made against any of the Seller and the Administrators:

"Completion means completion of the sale and purchase of the Assets under and in accordance with Clause 4:

...

"Consideration means the total consideration to be paid for the Assets under this Agreement:

...

"Contracts means the Customer Contracts and the Supplier Contracts:

...

"Debts means all book and other debts owing to the Seller (including any loans to any Transferred Employee) in relation to the Business as at the Transfer Time including all amounts invoiced by the Seller (whether before or after the Transfer Time) in relation to goods delivered or services provided on or prior to the Transfer Time:

...

"Football Debts mean amounts owed by the Seller to those creditors listed in Article 70.1 of the Articles of Association of the Football League and any other creditors required to be paid in full by the Football Association including any list in Schedule 2:

...

"Rights of Action means all of the Seller's rights against any third party in relation to the Assets including any rights in relation to the manufacture of any goods comprised in the Assets.

...

"Stock means all stocks of kit, training kit, replica kit, souvenirs, publications and programmes (including all packaging for such items) of the Seller held by the Seller solely for the purpose of the Business and situated at the Property as at the Transfer Time.

...

"Transfer Time means the commencement of business on the day on which Completion takes place."

It is agreed between the parties that the "Transfer Time" was 5th July 2000.

12. I should also refer to clauses 3, 4, 5, 6 and schedule 2 of the agreement. Clause 3 provides:

"3 CONSIDERATION

3.1 Amount and apportionment

Subject to Clause 3.2 the Consideration shall be £6,224,661 apportioned as follows:

(a) for the Computer Software the Rights of Action, the Sales Information, the Software Licences, the Contracts, the Players' Registrations and the Stock, the sum of £5,240,000.

(b) for the Goodwill, the Know-How, the Trade Marks, the Association Share, the League Share, the sum of £924,661; and

(c) for the Chattels and the Motor Vehicles, the sum of £60,000.

And shall be paid as provided in Clause 3.2.

3.2 Michele Padovano.

The Consideration and the apportionment for the assets referred to in Clause 3.1(b) shall each be increased by the sum of £175,000, but only if in respect of such sum Michele Padovano is no longer included as one of the Football Debts at Completion."

Clause 3.3 is not relevant for present purposes. It should be noted that all the assets referred to in clause 3.1 are Assets expressly referred to in clause 2.1 and vice versa.

13. Clause 4 makes provision for completion, including provision for certain conditions precedent and payment of the Consideration and concludes, "... whereupon such right, title and interest as the Seller may have in the Assets shall pass to the Buyer."
14. Clause 5 provides, so far as relevant:

"5 POST-COMPLETION ADJUSTMENTS

5.1 Apportionments of prepayments and accruals.

5.1.1 Subject to Clauses 2.4, 6 and 12, the Seller shall continue to be responsible for (but neither the Seller nor the Administrators undertake to the Buyer to discharge) any obligation of the Seller (whether actual or contingent) and any claim in relation to any Asset, in each case outstanding as at the Transfer Time."

15. Clause 6 provides:

"6 FOOTBALL DEBTS.

6.1 By way of further Consideration under this Agreement, the Buyer shall take over and discharge the liability for the Football Debts with effect from the Transfer Time whether such liability arises before or after the Transfer Time.

6.2 If an amount set out in Schedule 2 (other than those due in respect of Matthew Gregg and Bruce Dyer) is discharged by the Buyer in accordance with Clause 6.1 for a sum less than such amount, the difference between that sum and such amount shall be paid by the Buyer to the Seller as part of the Consideration."

16. Schedule 2 identifies the specific Football Debts referred to. It is common ground that the contingent fees do not form part of the Football Debts. The consideration was thus £6,224,661 under clause 3, and £2,175,339 under clause 6 and schedule 2, making a total consideration of at least £8,400,000, together with further Football Debts which might accrue due later.

Correct approach

17. As already indicated, the question is whether the contingent fees, or more accurately the rights to the contingent fees, were sold to CP 2000 or not. That depends upon the true construction of the agreement. Like any contract, the agreement must be construed in its context having regard to its surrounding circumstances or factual matrix. I accept Mr Marshall's submission that the relevant context is important and indeed that the court should avoid literal interpretation of the words.
18. The most recent statement of that principle in the House of Lords can be seen in paragraphs 18 and 19 of the judgment of Lord Steyn in Sirius International Insurance Co (Publ) v FAI General Insurance Ltd and others [2004] UKHL 54, 2004 1 WLR 3251 where he said this:

"18. The settlement contained in the Tomlin order must be construed as a commercial instrument. The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective: the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene.

19. There has been a shift from literal methods of interpretation towards a more commercial approach. In Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201, Lord Diplock, in an opinion concurred by his fellow Law Lords, observed: 'if detailed semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.' In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 771, I explained the rationale of this approach as follows:

'In determining the meaning of the language of a commercial contract ... the law ... generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language.'

The tendency should therefore generally speaking be against literalism. What is literalism? It will depend on the context. But an example is given in The Works of William Palely (1838 ed), vol III, p 60. The moral philosophy of Palely influenced thinking on contract in the 19th century. The example is as follows: the tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them all alive. This is literalism. If possible it should be resisted in the interpretative process. This approach was affirmed by the decisions of the House in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 775 E-G, per Lord Hoffmann and in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 913 D-E, per Lord Hoffmann."

Context

19. What then was the context of this agreement? It was the sale of the assets of a company running a football club by the company's administrators. I accept Mr Marshall's submission that it was the sale of the assets of CP 1986 as a going concern. That is clear from paragraph 1 of the conditions precedent to the transfer of the League share required by the League, which provided that there should be a creditors resolution "approving the conclusion of a sale by the Administrators of [CP 1986's] business and assets as a going concern for the best price and on the best terms that the Administrators consider to be obtainable." The parties' intentions in this regard are reflected in the last three lines of clause 2.1 of the Agreement which I have already quoted and to which I shall return.
20. The duty of the administrators was to realise as much money for the creditors of CP 1986 as they could. As I see it, they did that by selling some of the assets but retaining the others. It seems to me to make commercial sense, in the context described above, to sell such assets as it was appropriate to sell to enable the club to continue as a going concern, but at the same time to retain monies which were either immediately available or were likely to become available in the reasonably near future, in order, so far as possible, to meet the demands of the creditors. In that regard, it seems to me to make sense for the administrators to obtain, not merely cash in hand, but the right to payment of debts, including the payment of contingent fees, which would be likely to be payable, if at all, in the reasonably near future.
21. Finally in relation to context, it seems to me to be important to recognise that CP 1986 was put into administration because it was in financial difficulties and that all the parties must have contemplated the possibility, if not the probability, of liquidation. In short, the agreement was negotiated in what might be called a context of insolvency.

Discussion

22. The judge accepted CP 1986's case that the contingent fees were not sold because they were "other debts outstanding" on 5th July 2000 within the meaning of clause 2.2(ix) and thus expressly "not included in the Assets". The judge recorded that it was common ground, first, that the contingent fees were not within any of the types of "Assets" identified in paragraphs (a) to (m) of clause 2.1, and, second, that none of the other sub-clauses of clause 2.2 was wide enough to encompass them. The judge held that the contingent fees were excluded because of this express provision of clause 2.2:

"There shall not be included in the Assets and the Buyer shall not acquire with this Agreement any right, title, or interest in or to:

...

(ix) any of the Seller's cash at bank or cash in hand or any of the Seller's book or other debts outstanding at the Transfer Time."

23. It is, as I understand it, common ground that if the judge is correct and the contingent fees, or more precisely CP 1986's contingent right to the contingent fees, are within clause 2.2(ix), and thus expressly agreed to be "not included in the Assets", CP 1986 is entitled to them. It is not, however, common ground that if the judge was wrong about that CP 2000 would be entitled to the contingent fees.
24. In my opinion the two clauses, 2.1 and 2.2, must be considered as part of the contract as a whole. However, I agree with Mr Peacock that logic suggests that we should consider first the structure and meaning of clause 2.1. Although the agreement is entitled "Business Sale Agreement", it was not the business which was expressed to be sold, but by clause 2.1 "... such right, title and interest as the Seller may have in and to..." the list of Assets specified in paragraphs (a) to (m) of clause 2.1 which I shall call "the specified assets."
25. Mr Peacock submits that only those "Assets" were agreed to be sold and that the list of the Assets does not include the contingent fees. Mr Marshall does not argue that contingent fees come within any of the assets specified in paragraphs (a) to (m) of clause 2.1, but he submits that all assets used in the business were transferred under the agreement including the contingent fees by reason of the general words at the end of the clause. Clause 2.1 may be read in this way:

"Assets

"The Seller shall sell and the Buyer shall purchase, with effect from the Transfer Time, such right, title and interest as the Seller may have in and to [the specified assets] with the intent that from the Transfer Time the Buyer shall (subject to Clause 2.2) acquire all the assets used in the Business and shall carry on and continue the Business as a going concern in succession to, and to the exclusion of, the Seller."

26. Mr Peacock submits that clause 2.1 cannot fairly be read as an agreement to sell anything other than the specified assets. He says that the words at the end simply set out the intention of the parties in agreeing the sale and purchase of the specified assets, but cannot be read as extending the classes of assets identified in the list of specified assets. That seems to me to be correct as a matter of language since all the agreement expressly provided as being sold is "such right, title and interest as the Seller may have in and to" the specified assets.
27. However, Mr Marshall submits that the agreement must be construed purposefully and in its context. He relies upon the words at the end of clause 2.1 which expressly provide that the intention of the agreement was that CP 2000 should acquire all the assets, and thus not only the specified assets, and that it should "carry on and continue the Business as a going concern in succession to, and to the exclusion of," CP 1986, which would naturally include sums otherwise due to CP 1986 such as contingent fees becoming due in the future.
28. Mr Marshall submits that clause 2.2 provides an exhaustive list of assets excluded and that when clauses 2.1 and 2.2 are construed together it is clear that the parties agreed that all the assets of CP 1986 used in the business were the subject of the sale except those listed in clause 2.2. Moreover, he submits that if Mr Peacock's submissions were correct there would be no need for clause 2.2 at all.
29. Thus he observes that the provisions in clause 2.2(ix) providing for "cash at bank or cash in hand" would not have been necessary because cash did not feature anywhere in the list of assets in clause 2.1. He notes that the same goes for other categories of assets specified in clause 2.2, such as pension funds in clause 2.2(vi), which could not fall within clause 2.1. He thus submits that it could only have been necessary to provide for these exclusions expressly in clause 2.2 on the basis that they might otherwise pass to the purchaser under the concluding words of clause 2.1.
30. Mr Marshall further rejects various explanations for the concluding words of clause 2.1 advanced by Mr Peacock and submits that they were intended to cover any further assets used in the business over and above those expressly retained under clause 2.2 whether or not they are included in the list in clause 2.1.
31. There is undoubted force in those submissions, although, if they are correct, there remains the curiosity that the reference in the concluding words of 2.1 is not to Assets which are defined in clause 1 as the assets agreed to be sold and purchased under clause 2, but to assets (with a small "a").
32. In considering these rival submissions it is, I think, helpful to reflect on the structure of the agreement. The way it is drafted is to set out a list of definitions, including the definition of Assets as "the assets agreed to be sold and purchased under Clause 2", and then to set out a list of the assets being sold. One can perhaps imagine the parties sitting round a table, or speaking on the telephone, and discussing what assets should be included in the sale and what price should be paid for them. The administrators would no doubt indicate what assets they were willing to sell and CP 2000 would indicate what assets they were willing to buy. Specific assets would then be agreed upon, a list drawn up and a price agreed. Some such process must, as I see it, have led to the list of assets in clause 2.1.
33. What has struck me from the outset is that if the parties had intended that the sale should include the contingent debts there was no reason at all why they should not have been included in the list of assets in clause 2.1, perhaps as 2.1(n). Or there could have been a paragraph (n) referring to "all other assets" or "all other assets used in the business", yet there is not.
34. In the result, there are no words of sale which even arguably cover the contingent fees. It is for that reason that Mr Marshall has to rely on the three lines at the end of the clause. However, they are not words of sale but words of intention. The expressed intention or "intent" was that the agreement to sell the specified assets was "with the intent that from the Transfer Time the Buyer shall (subject to Clause 2.2) acquire all the assets used in the Business and shall carry on and continue the Business as a going concern in succession to, and to the exclusion of, the Seller."
35. The second part of that extract simply states the intent of the parties that it was intended that CP 2000 should continue the business without interference on the part of CP 1986. However, that does not explain the first part. Mr Peacock makes two alternative suggestions as to the meaning of the first part. The first is that it simply states the intention of the parties that the specified assets were being sold so that CP 2000 would acquire "all the assets used in the Business".
36. That seems to me to make sense. All the specified assets in clause 2.1(a) to (m) can fairly be described as assets used in the business. Moreover, one of the purposes of the last three lines was to make it clear that those assets would be acquired subject to clause 2.2 which excludes property "not included in the Assets". It is true, as Mr Marshall says, that many of the items identified in clause 2.2 are not within any of the classes of assets specified in clause 2.1, but some are, and it appears to me that the purpose of clauses 2.1 and 2.2 read together was to make it clear what was included in the sale and what was not.
37. With the exception of contingent fees and one other possible exception, no one has been able to suggest any asset which is not specified in either clause 2.1 or clause 2.2 which the parties might have intended should have been transferred under the last three lines of clause 2.1 and which were not transferred as one of the specified assets. The only other possible exception suggested in argument was that there might be a stock of unused tickets. However, such a stock of tickets hardly seems likely to have been the reason for the last three lines for clause 2.1. In any event, it seems likely to me that any such tickets would have been treated as part of the Stock, at any rate in practice.
38. In my opinion those three lines are not apt to have the effect of transferring assets other than the specified assets. I would accept Mr Peacock's submission that this construction of the agreement is consistent both with the wording of the clauses and with both its context and its commercial purpose as explained earlier. It is, for example, entirely consistent with the final words of clause 4.2 which provides that upon completion "... such right, title and interest as the Seller may have in the Assets shall pass to the Buyer." That seems to me naturally to mean the assets specified in clause 2.1.
39. In short, the construction of the last three lines of clause 2.1 proposed by Mr Marshall seems to me to founder on the fact that there are no words of sale, or agreement to sale, covering assets which do not form part of the specified assets in clause 2.1(a) to (m), which it is common ground do not include the contingent fees.
40. There is also to my mind force, albeit perhaps limited force, in Mr Peacock's point that by clauses 3.1 and 6 the parties carefully divided the consideration under different heads, and that if they had intended that CP 2000 should buy the contingent fees, which could well have amounted to a significant figure, as indeed proved to be the case, they would have included them, which it is common ground that they did not.
41. Moreover, although Mr Marshall refers to clause 6 and schedule 2, they both refer to Football Debts which it is common ground that a buyer would have to buy in order to be permitted by the League to purchase the League share and to operate a football club in the League. Mr Marshall submits that CP 2000 must have been entitled to something in addition to the specified assets by way of consideration for paying the Football Debts and suggests that that something must include the contingent fees. That submission has some forensic force, but the problem is that there is nothing in the agreement itself which supports it.
42. The conclusions set out above seem to me to give some support to the judge's construction of clause 2.2(ix). That is because, on the face of it, the only assets being sold were the specified assets. I can well understand that the parties would have wished to exclude all other assets, making it clear that no assets were being sold other than those specified assets identified in clause 2.1. That would make sense of both clause 2.1 and clause 2.2 because otherwise there would be assets used in the business which were not included in the list of assets sold, but which the last sentence of clause 2.1 shows that it was intended to sell.
43. To my mind that suggests that it was intended that there should be no assets sold other than those identified in clause 2.1, and that everything which might otherwise be an asset used in the business was intended to be excluded by clause 2.2, hence the use of asset in the concluding words of clause 2.1 and Asset as the heading for clause 2.2.
44. Before I turn to clause 2.2(ix) I should say this about Mr Peacock's alternative submission as to the construction of the last three lines of clause 2.1. He submits that if, contrary to his primary submission, the last three lines had the effect of selling assets used in the business not specified in paragraphs (a) to (m) of clause 2.1, the contingent fees were not "assets used in the Business" within the meaning of the clause, so that they were not transferred.
45. There seems to me to be some force in that submission, at any rate if the question is tested as at the date of completion, because the right to the fees was at best a contingent right to payment in the future. However, on the view I expressed earlier, this point does not arise.
46. I turn to clause 2.2(ix). I have reached the conclusion that the judge's construction of clause 2.2(ix) was correct. Moreover, I would have reached that conclusion even if I had concluded that the last three lines of clause 2.1 had the effect of selling assets other than, and in addition to, the specified assets to CP 2000.
47. As already indicated, the judge held that the contingent fees were "other debts outstanding at the Transfer Time". His reasons were, in short, as follows. (1) The terms "other debts" and "outstanding" are not terms of art so that his task was to determine the intention of the parties in using them in the context in which they used them in clause 2.2(ix) (see judgment paragraph 31). (2) The definition of "outstanding" in the first and fifth editions of the Shorter Oxford English Dictionary is such that on the face of it the ordinary meaning of the word was wide enough to include contingent debts which had not yet become due and payable (paragraph 33). (3) In its context "outstanding" means more than "due." The judge contrasted the use of the word "due" in clause 2.2(iv) and "outstanding" in clause 2.2(ix). He also referred to the fact that the parties recognised in clause 5.1.1 that a contingent obligation might be "outstanding as at the Transfer Time" and said that if a contingent liability owed by CP 1986 could be regarded as "outstanding as at the Transfer Time" then so could a contingent debt owed to CP 1986 (paragraph 34).
48. Mr Marshall challenges that reasoning in a number of ways. First, he submits that the judge failed to have any, or any sufficient, regard to the context in which the word "outstanding" was used. He relies upon the whole of clause 2.2(ix) which it will be recalled excludes "any of the Seller's cash at bank or cash in hand or any of the Seller's book or other debts outstanding at the Transfer Time." Mr Marshall submits that the judge took no account of the fact that the words "other debts outstanding" were used in the context of cash, whether at bank or in hand, and book debts, both of which are readily and immediately realisable assets and could not include contingencies such as contingent fees.
49. Secondly, he submits that the judge was wrong to hold that the use of the word "outstanding" in clause 5.1.1 supported his conclusion, because in that clause the parties considered it necessary to spell out the fact that the outstanding obligation could be either actual or constructive whereas in clause 2.2(ix) they did not.
50. Thirdly, the judge was wrong to say as he did that one could not readily describe contingent fees as an asset used in the business of the Crystal Palace Football Club.
51. The fundamental point, however, made by Mr Marshall was that the judge's use of a dictionary definition of "outstanding" was misguided when the key wording, he says, was "book or other debts".
52. For my part I would accept the submission that, like any other clause in a contract, clause 2.2(ix) must be construed in its context. I would also accept the submission that it is not sufficient to have regard to dictionary definitions of particular words or expressions. However, that is not to say that it is not permissible to have regard to them. The definitions referred to by the judge were these. The definition of "outstanding" in the fifth edition of the Shorter Oxford Dictionary includes, "unresolved, pending; esp (of a debt etc) unsettled." In the first edition it includes, "... that stands over; that remains undetermined, unsettled, or unpaid."
53. In these circumstances the judge was, as it seems to me, entitled to hold that an ordinary meaning of the word is wide enough to include contingent debts which had not yet become due and payable. The question for the judge was whether the word "outstanding" included that meaning in clause 2.2(ix). That depends upon the natural meaning of the language in its context. It appears to me that the expression "book or other debts outstanding" is amply wide enough to include contingent liabilities in debt arising out of existing transfer arrangements. Just as book debts are different from cash, so other debts are different from book debts. It is common ground that the contingent fees were not book debts.
54. I note in passing that it is far from certain that all book debts, in the sense of debts shown in the accounts, are readily realisable in practice. However, that may be, I also accept that 'debts' have been construed in different contexts as excluding contingent debts: see eg Webb v Stenton [1883] QBD 518 and the Commissioners of Inland Revenue v Port of London Authority [1923] AC 507. Mr Marshall submits that the expression "book or other debts" is a well recognised expression used by accountants and commercial men. He refers to In re Brightlife Ltd [1987] 1 Ch 200, where Hoffmann J held that a bank balance did not fall within the expression "all book debts and other debts" in a debenture. A bank balance was, he said, what is ordinarily described as "cash at bank".
55. I would entirely accept that the judgment of Hoffmann J supports the proposition that some at least of the expressions used in clause 2.2(ix) are in common use by accountants and businessmen. However, that case does not resolve the question of construction of clause 2.2(ix) in this agreement. The context here is quite different from the context in the decided cases to which we were referred. In particular, as stated earlier, the context is one of insolvency, or at the very least potential insolvency. All those concerned knew that. This agreement was made long after the Insolvency Act 1986.
56. By the time of this agreement it was commonplace to include within the notion of debt, in an insolvency context at any rate, a contingent debt. Thus Rule 13.12(3) of the Insolvency Rules 1986 provides:

"(3) For the purposes of references in any provision of the Act or the Rules about winding up to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in any such provision to owing a debt are to be read accordingly."

In these circumstances it seems to me that in the context of insolvency or potential insolvency a reference to "debt" can readily be construed as a reference to a contingent debt, depending, of course, upon the circumstance.

57. In the circumstances of the instant case I see no reason for limiting the meaning of "other debts" to "debts like book debts". It naturally includes any other debts. What then is meant by "outstanding"? Mr Marshall construes it as if it means "due". Like the judge I can see no reason why the parties would not have used the word "due" if that is what they meant, just as they did in clause 2.2(iv). While I see the force of Mr Marshall's point that little if any weight can be given to the reference in clause 5.1.1 to contingent obligations because of the use of the phrase "actual or contingent", the same does not apply to the contrast between the use of the word "due" in clause 2.2(iv) and the use of the word "outstanding" in clause 2.2(ix). In my judgment the judge was justified in accepting that the word "outstanding" is capable of meaning more than "due". Once that is accepted there seems to me to be no good reason not to construe the expression "other debts outstanding" as being wide enough, in the present context, to include contingent fees.
58. In all the circumstances I agree with the judge that contingent fees were agreed not to be included in the Assets and were thus not sold to CP 2000. I am conscious that I have not specifically focused on every provision in this agreement which was touched on in argument. None of them, however, affects the conclusions which I have reached. I am not persuaded that this is a case in which the agreement should be construed contra proferentem where the proferentes was the Seller, but if it is, my conclusion remains the same.
59. Finally, I would add that the conclusion which I have reached seems to me to be consistent both with the language of the agreement and with the purposes and intentions of the parties. The purpose of CP 2000 was to acquire a football club as a going concern and the purpose of the administrators was to retain monies which was, or would, it was contemplated, soon be at their disposal in order to pay the creditors. Those, to my mind, include the contingent fees.
60. In all these circumstances I would dismiss the appeal.
61. LORD JUSTICE WALL: I entirely agree and do not wish to add anything.
62. LORD JUSTICE MUMMERY: I agree.

ORDER: appeal dismissed; appellant to pay respondent's costs subject to detailed assessment.