Mr Justice Eady :
- A jury trial is due to take place on 8 June this year. The Claimants are troubled in the light of the pleaded issues as to whether it is a suitable case for a jury, but no application has been made for trial by judge alone and the Defendants wish to have the facts decided by a jury. At this late stage, the Claimants seek to strike out all three substantive defences currently pleaded; that is to say, justification, fair comment and qualified privilege.
- The Claimants are all members of a musical group which performs variously under the names The Gillettes and Saturday Night at the Movies. The First Defendant is one of two directors of the Second Defendant, 1311 Events Ltd, which provides entertainment booking services.
- The words complained of were published on the Defendants' website http://www.1311events.net/4playplus.html for several weeks leading up to the beginning of June 2007:
"1311 Events is no longer able to accept bookings for this artist as The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract.
…
What we say:
The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night At The Movies has advised 1311 Events that the terms and conditions of '… contracts hold no water in legal terms' (27.03.07). For this reason, it may follow that the artists' obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for The Gillettes and Saturday Night At The Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.
Instead, we recommend any of the following professional bands and artists … "
- It is pleaded that the Claimants would all have been identifiable by "a large but unquantifiable number of readers of the words complained of". The meaning relied upon in the particulars of claim is that:
"… the Claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies."
There is a claim for general damages and also for special damages in respect of two engagements said to have been cancelled by hirers of their services who had read the words complained of.
- Before I turn to the defences now under challenge, it is appropriate to set out the background, much of which is in itself uncontroversial.
- On 13 October 2004 the Claimants entered into a contract with the Second Defendant. Its function was to find hirers for the Claimants' services, but it did not become the Claimants' exclusive agent. They remained on the books of a number of other agents.
- In April 2006 it was agreed that the Claimants (as The Gillettes) were to perform on 31 December 2006 at a restaurant in Leeds called Bibis. The concert went ahead but the First Claimant describes in his witness statement how the marketing manager of the restaurant, Tracy Dawes, presented herself before they had even got into the building and said, "Whoever your agent is, he is a total tosser, ignorant, rude and aloof". She said that when she had asked the First Defendant, Mr Spiller, for publicity material about The Gillettes for promotional purposes, he replied, "You have already received the marketing material, and can I suggest you go back to your office and have a look for it". This apparently prompted Ms Dawes to say that she would never use 1311 Events again.
- It appears that the concert went satisfactorily and, in February 2007, Ms Dawes contacted the First Claimant in order to book The Gillettes for a further performance in May of that year. This was done without reference to the Second Defendant, but the Claimants agreed to perform. This is said by the Defendants to be in breach of a "re-engagement clause" in their contract with the Claimants. I shall return to this shortly.
- When the First Defendant found out about Ms Dawes' second booking, he sent an email to the First Claimant on 27 March 2007, claiming that legal proceedings would be taken against them and that he would report the Claimants to the Musicians' Union because of a breach of a contractual obligation to the following effect:
"The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events."
He added that the Defendants would not be representing the Claimants any longer, "as we can only work with professional artists who can accept our terms and conditions".
- The First Claimant responded the same day in these terms:
"Hi Jason
It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artitses [sic] alike with work, one does not work without the other.
You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms. You should consider looking after your clients/ venueus [sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more. You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary.
I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms or conditions.
Thers [sic] is one outstanding show with you guys Aug 4th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee £900.00 + vat. TOTAL = £1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancelation [sic] of the show. Please confirm this can be organized within 7 days or I will cancel the date.
I look forward to any legal trysts.
Kind regards
Craig (On behalf of The Gillettes)."
- Mr Bennett, appearing on the Claimants' behalf, points to the contrast between the First Claimant's words in that email and the very brief summary of it appearing on the Defendants' website, attributed within quotation marks, which suggests that the Claimant had made a general assertion about "contracts" (i.e. in the plural) not holding water. This is said not only to be a distortion, by reason of the fact that it is taken out of context, but also a deliberate misrepresentation, since the First Claimant's comment in the email was specifically directed towards the contractual provision relied upon by the First Defendant in his email of the same date.
- The significance of this is perhaps obvious; namely, that anyone reading the words complained of on the website might conclude that the Claimants' attitude towards contractual obligations in general would lend support to the warning that any obligations undertaken by the Claimants in respect of "your booking" might also not be met. This would carry less impact, it is submitted, if the true position had been stated, to the effect that the First Claimant had only been taking issue with one contract, or one contractual term (i.e. the "re-engagement clause"), in particular.
- A letter of complaint was sent on the Claimants' behalf, by John Ainslie of Equity, on 18 May 2007. It seems that shortly after 1 June 2007 the words complained of were removed from the website. Accordingly, the Claimants took the matter no further at that stage but, for some reason, in February 2008 the words appeared again on the website, where they remained until about 16 April of that year. Whether or not this was accidental, as the Defendants suggest, it was this further period of publication which led to the Claimants once again taking up the cudgels.
- The claim form was issued on 7 May 2008 with the complaint, for limitation reasons, being confined to those publications which had taken place from 8 May 2007 onwards.
- Against this background, I must now turn to the application to strike out the plea of justification. Should it survive, there is an application on the Defendants' part to add a further paragraph to the particulars of justification. So that the nature of the dispute can be properly understood, I shall set out, first, the existing particulars of justification:
"9. Further or alternatively, the words complained of are true or substantially true.
Meanings that the Defendant alleges to be true
9.1. The First Claimant on behalf of the Claimants has:-
9.1.1. Conducted himself in such a manner as to entitle the Defendants to conclude that the Gillettes were not sufficiently professional to feature in the Second Defendant's portfolio.
9.1.2. Breached the terms of agreements with the Second Defendant.
9.1.3. Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007.
9.2. In the circumstances, the Claimants may not necessarily adhere to the terms of booking agreements signed by the First Claimant.
The facts on which the Defendant relies
9.3. Paragraphs 4 & 5 above are repeated. The Second Defendant's terms and conditions are clearly set out. They are standard. At no point prior to 27 March 2007 did the First Claimant question or take issue with them.
9.4. In April 2006 the Second Defendant secured a booking for the Gillettes at Bibis restaurant in Leeds on 31 December 2006 for £2,937.50. The Second Defendant had previously secured bookings for bands at Bibis.
9.5. On 19 April 2006 the First Claimant signed the Second Defendant's booking form on behalf of the Claimants for the performance. The booking form identified the artist as the Gillettes and the client as Bibis Restaurant. Immediately above the First Claimant's signature appeared the words "I/We agree to the 1311 Events Ltd Terms & Conditions" which were clearly printed on the reverse and must have been seen by the First Claimant. The First Claimant posted the signed booking form to the Defendants.
9.6. The terms and conditions commence with the words: "Your booking with 1311 Events is conditional on you accepting our terms. If you do not agree with any part of them you must not proceed with your booking. If there is any part that you do not fully understand or if you have a query about your booking, please contact us on 0845 075 1311".
9.7. One of the terms and conditions was headed "Re-engagement" and stated: "The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events".
9.8. In or about March 2007 the Second Defendant discovered that the Gillettes were booked to perform at Bibis restaurant on 9 May 2007. The booking was not made with the Second Defendant.
9.9. This was a clear breach of the re-engagement term.
9.10. Further, it is to be inferred that the breach was deliberate.
9.10.1. The First Claimant failed to disclose the booking to the Defendants.
9.10.2. The First Claimant must have been aware of the re-engagement term and/or known that such terms were standard.
9.10.3. The content of the First Claimant's email of 27 March and the matters set out in paragraphs 9.12.3 to 9.12.5 suggest that he simply chose to disregard or find a way round the term, once it became apparent that the First Defendant had discovered the booking.
9.11. On 27 March 2007 the Second Defendant sent an email to the First Claimant informing him of the breach and that the Defendants would no longer be representing the Gillettes.
9.12. The First Claimant responded by email on the same day. The Defendants will rely on the whole of the email. In summary, it demonstrated a contemptuous, cavalier and unprofessional attitude to contractual obligations voluntarily assumed by the First Claimant on behalf of the Claimants.
9.12.1. The First Claimant asserted that the contract with the Second Defendant was "a formality and holds no water in legal terms". This suggested that the First Claimant's signature to the agreement and apparent acceptance of its terms was meaningless to him.
9.12.2. The apparent justification for this assertion was that the First Defendant came to him after viewing the Gillettes' show. However, this was obviously irrelevant to the binding nature of the subsequent contract between the parties.
9.12.3. Further, the First Claimant asserted that he would not be playing in the show and that since "your agreement was with me there are no grounds for your terms and conditions". This was a dishonest and brazenly cynical attempt on the part of the First Claimant to wriggle out of the Claimants' responsibilities under the agreement. As the First Claimant was well aware, he contracted with the Second Defendant on behalf of himself and the Second and Third Claimants. Indeed, the Claimants' case in these proceedings is that the First Claimant is the manager and representative of the band, that the Claimants are all equal partners and the First Claimant contracted on behalf of all the Claimants.
9.12.4. The very fact that the First Claimant had felt the need to come up with a spurious way of trying to get round the re-engagement term suggests that he was well aware that it was binding.
9.12.5. In a further misguided attempt to get round the re-engagement term the Claimants have asserted that the First Claimant did not even arrange the booking for the performance of 9 May 2007 and that "the band as individuals had no agreement of any kind with [you] before they arranged this gig directly and on their own behalf and were thus not in breach of anything either". The Defendants will rely on the email of 31 May 2007 from John Ainslie, Regional Organiser of Equity on behalf of the Claimants to the Defendant, which it is to be inferred was based on information provided by the Claimants. It is to be inferred that the Claimants were dishonestly seeking to distance the First Claimant from the booking and get round the fact that the First Claimant at all times acted on behalf of the Second and Third Claimants, in a misguided attempt to bolster the strength of their defamation claim and obtain funding from Equity in order to be able to pursue it.
9.12.6. The First Claimant's parting words – "I look forward to any legal trysts" – demonstrated further contempt for the contractual obligations to which he had voluntarily agreed.
9.13. In December 2005 the First Defendant contacted the First Claimant to inform him of a potential booking at the Landmarc in Bournemouth on 4 March 2006. The First Claimant informed the First Defendant that the band was available that night. The First Defendant informed the Landmarc of this who confirmed that they wanted to book the band. The First Defendant informed the First Claimant that the Landmarc definitely wanted to go ahead and repeated the date. The First Claimant confirmed that the date was acceptable to the Claimants. Following the conversation the First Defendant sent out a completed booking form for signature by the First Claimant. On 17 December the First Claimant signed and returned the booking form.
9.14. On or about a week later the First Claimant informed the First Defendant that the Claimant would not be able to honour the agreement to play as they had made a mistake and the band had a previously confirmed booking on the same night. This was a clear breach of the booking agreement and was highly unprofessional. The First Claimant's conduct was also capable of damaging the Defendants' relationship with the venue.
9.15. Further, it is to be inferred that the Claimants did not have a pre-existing booking, but that something better came up."
- Fundamental to the defence of justification is the Defendants' proposition that the re-engagement term was incorporated in the contract between the Claimants and the Second Defendant. Mr Bennett argues for a variety of reasons, however, that it played no part either in the original contractual arrangements of 13 October 2004 or those specifically concerned with the Bibis engagement booked in April 2006. He invites the court to reach this conclusion primarily on the basis of the documentation and the ordinary common law principles of construction as, for example, expounded in the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912 and Prenn v Simmonds [1971] 1 WLR 1381, 1364-6. Alternatively, he argues that the terms of the contract are affected by the Conduct of Employment Agencies and Employment Business Regulations 2003 (S.I. 2003 No 3319). I shall turn first to the more straightforward argument based on the common law.
- The contract of October 2004 was entered into by the Claimants online. The First Claimant filled in what is referred to as an Artist Agreement form. The document was four pages in length and contained on the third page the words "Events Full Terms & Conditions can be found here → → → " There is a hyperlink which enables the person entering into the contract to access those full terms and conditions. On the third page of that document the relevant term appears:
"RE-ENGAGEMENT
The client and artist agree that subsequent bookings within a 12 month period from any artist provided by 1311 Events will be booked directly with 1311 Events and not with the artist directly."
- Mr Bennett argues that the "full terms and conditions" (including the re-engagement term) have no application to the contractual arrangements as between the Claimants and the Second Defendant – only to those subsisting between the Second Defendant and the relevant third party who would be hiring their services ("the hirer").
- He points out that the wording of the terms and conditions appears to be directed towards the hirer (addressed throughout as "you") rather than to the artist (who is generally referred to in the third person as "the artist"). It is also true, however, that sometimes the hirer is referred to as "the client" rather than "you".
- There is a term set out on the third page of the terms and conditions, under the heading "IF THE ARTIST CANCELS", to the following effect:
"All artists must notify 1311 Events immediately where a performance cannot be fulfilled as indicated in their contract."
Mr Bennett suggests that the words "in their contract" plainly suggest that the artist's contractual obligations are to be found elsewhere (i.e. in a document different from that containing the terms governing the hirer's rights and obligations). In so far as these terms and conditions refer to obligations on the part of the artist, it is said that they are merely informing the hirer as to where the division of responsibility lies as between the hirer and the artist. There is a section headed "ARTISTS ARE RESPONSIBLE FOR" and, underneath it, a section headed "CLIENTS ARE RESPONSIBLE FOR". In other words, argues Mr Bennett, this is for the information of the hirer rather than creating obligations on the part of the artist directly. He suggests that any obligations imposed on the artist are created and recorded in a separate document.
- I have little doubt that the contractual documents could have been drafted more clearly, so as to avoid any possible confusion, but it is difficult in my judgment to overcome the fact that the re-engagement clause makes reference both to the client (i.e. the hirer) and to the artist, equally, in that it begins with the words "The client and artist agree that …". In these circumstances, since the "artist agreement form" refers expressly to the full terms and conditions, and those include the re-engagement term which seeks to impose the 12 month restriction on both the hirer and the artist, it seems to me to be natural to conclude that it would be understood by the reasonable artist as imposing the restraint upon him or her.
- Mr Bennett argues that the re-engagement term is not to be taken as included within the artist agreement form. Literally, of course, that is true, but I do not believe it is realistic simply to ignore the cross reference (via the hyperlink) to the full terms and conditions. Mr Bennett emphasises the restrictive nature of the re-engagement term, so far as the artist's freedom to contract is concerned. That is true, as it is also true of any restrictive covenant in a contract of employment or for services. From the agent's point of view, it is intended to ensure that where an introduction is effected between hirer and artist, the agent's commission or remuneration is not confined to the first hiring engagement but will extend for a period of 12 months. Whether this is a reasonable restraint of trade may be a matter for debate, but neither advocate addressed any such argument before me.
- The effect of Mr Bennett's argument is that the engagement of the Claimants by Bibis through Ms Dawes may have given rise to a claim for breach of contract against Bibis, as the hirers, but that the re-engagement term would afford no remedy against the Claimants. Since, however, the re-engagement term is expressed to apply to both hirer and artist, I find that a difficult argument to sustain.
- Mr Bennett seeks to support his argument by reference to a slight difference of wording as between the hirer's agreement with the Second Defendant, dated 5 April 2006, and the written booking agreement signed by the First Claimant. It is to be noted that in the Bibis agreement of 5 April the signatory has agreed to the 1311 Events Limited Terms & Conditions, which are expressed to be "overleaf". Those, of course, include what is, to all intents and purposes, the same re-engagement term. The wording is slightly different:
"The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events."
The important distinction for Mr Bennett, on the other hand, is that in the written version of the contract signed by the First Claimant on 19 April the word "overleaf" is not to be found. In fact the terms and conditions were to be found overleaf and, in any event, the First Claimant had had them available for inspection via the hyperlink when he originally contracted online in October 2004. At that time the wording of the re-engagement term was superficially different, but this was not material. The First Claimant had already agreed to those terms, including the re-engagement term, in October 2004 and there was no question of a variation being imposed upon him, unwittingly, when he signed up for Bibis on 19 April 2006.
- Mr Bennett argues that if the First Claimant had at or before signing the document looked overleaf, despite the lack of any express invitation to do so, he would have found something which the reasonable reader would not conclude had anything to do with him. He submits, again, that it is reasonable to construe those terms and conditions as applying only to the hirer and not to the artist. As I have already said, I find that implausible in view of the express reference to both hirer and artist in the re-engagement term itself.
- In these circumstances, I reject Mr Bennett's submission that as a matter of ordinary construction the Claimants were not bound by the re-engagement term. I now need to consider his rather more complicated argument based on the statutory provisions, as to which I was told that there was little or no authority to assist.
- In summary, Mr Bennett's argument is to the effect that the 2003 Regulations govern relations between agents and "work-seekers". He argues that these regulations apply to the material contractual relationship in this case, between the Claimants and the Second Defendant, and that they should affect the court's construction of the relevant documents, as well as the enforceability of the contract in certain respects. In particular, they have the effect of excluding the re-engagement term.
- It is Mr Bennett's submission that "work-seekers" is a term apt to include the Claimants and that they should accordingly be given protection when working for agents. Mr Price, appearing on behalf of the Defendants, is somewhat sceptical about this argument, on the basis that artists who seek bookings on the basis of a one night stand would hardly be in the category of persons needing the protection Parliament had in mind. He suggests that this statutory regime must have been intended by the legislature to have effect only in relation to those seeking employment on a rather more stable and permanent basis.
- It is necessary to take account of the Employment Agencies Act 1973, which was intended by Parliament to regulate employment agencies and businesses. The statutory terminology may have some significance. It is provided in s.13(2) that:
"For the purposes of this Act 'employment agency' means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding [persons] employment with employers or of supplying employers with [persons] for employment by them."
It would not appear to be of any great significance, but the word "persons" was substituted by the Employment Relations Act 1999, s.31, Sch 7, paras 1 and 7. The original word was "worker(s)".
- Having regard to Mr Price's submission as to the need for the "employment" in contemplation to be of a stable or permanent kind, it is to be noted that the word is said specifically in s.13(1) to include "employment by way of a professional engagement or otherwise under a contract for services". Mr Bennett suggests that this is consistent with his submission that the statutory regime would embrace an agency or business carrying out the functions of the Second Defendant. In particular, however counter-intuitive it may be, the wording would appear to cover a situation in which an artist is hired for a musical performance on a specific occasion pursuant to a contract for services.
- My attention was drawn to s.5 of the 1973 Act, which provided for the Secretary of State to make regulations to secure the proper conduct of employment agencies and to protect the interests of persons availing themselves of their services. Specifically, it was contemplated in s.5(1)(eb) that regulations might make provision:
"regulating the way in which and the terms on which services may be provided by persons carrying on such agencies and businesses".
- The current Regulations operating pursuant to those provisions are the 2003 Regulations, to which I have referred above, and these do indeed contain some requirements regulating the terms on which employment agencies may provide services. Infringement of those regulations may, in certain circumstances, amount to a criminal offence punishable with a fine not exceeding level 5 on the standard scale.
- It is right to point out that this legal point does not appear to be something of which the parties were aware before this litigation commenced. It follows that it played no part in the First Claimant's reasoning in his 27 March email to the effect that the Defendants' contractual claim did not "hold water". The significance of the statutory regime is said to be relevant to one aspect of the plea of justification only; that is to say, whether or not there was an actionable breach of contract on the Claimants' part.
- There is no authority on the construction of the 2003 Regulations which either of the advocates was able to cite throwing light on their intended scope or as to the question of whether or not they would apply to an agency performing the functions of the Second Defendant. Accordingly, one simply has to be guided by the plain language of the statute and the Regulations. It is to be noted, in passing, that there are provisions governing the circumstances in which fees may be charged by such an agency to work-seekers: see e.g. Reg 26 and Schedule 3. For the moment, it is only necessary to observe that the occupations in respect of which employment agencies may charge fees to work-seekers (subject to certain safeguards) include "actor, musician, singer, dancer or other performer". This tends to support Mr Bennett's submission that the Regulations are applicable, since persons in those occupations are frequently engaged for one-off performances, rather than for employment on a more permanent basis.
- Mr Bennett draws attention to the fact that, by reason of Reg 31(1), where a term of a contract is prohibited or made unenforceable by the Regulations, the contract shall continue to bind the parties if it is capable of continuing in existence without the relevant term. He relies upon this because he argues that if the Claimants would appear to be in breach of a term which is rendered unenforceable by the impact of the Regulations, it would not, to that extent, be correct to describe them as in breach at all. For this purpose, he says, it would not matter that the unenforceability (if such it is) was unknown to the Claimants at the time when the relevant "breach" occurred.
- Mr Price, on the other hand, submits that even if the court were to hold the re-engagement term unenforceable, it would still be open to his clients to argue that the Claimants' non-compliance provided support for the proposition that they were unprofessional and cavalier as to the discharge of their obligations. If the term would otherwise be binding, but was rendered unenforceable purely by reason of the Regulations, the Claimants could still be said, in failing to comply with it, to have been cavalier or irresponsible about carrying out their obligations. The position might well be different if they had received firm legal advice to the effect that it was unenforceable prior to their decision to ignore it.
- Against this background, Mr Bennett first referred to Reg 14(1):
"Subject to paragraph (7), before first providing any work-finding services to a work-seeker, an agency or employment business shall obtain the agreement of the work-seeker to the terms which apply or will apply as between the agency or employment business and the work-seeker …."
- It is also provided in Reg 14(2):
"Subject to paragraph (3), an agency or employment business shall ensure that –
(a) all terms in respect of which the agency or employment business has obtained a work-seeker's agreement are recorded in a single document, or where this is not possible, in more than one document; and
(b) copies of all such documents are given at the same time as each other by the agency or employment business to the work-seeker with whom they are agreed before the agency or employment business provides any services to the work-seeker to which the terms contained in such documents relate."
- The material time in this context is October 2004, when the artist agreement was submitted online.
- Attention was also drawn to Reg 14(4) which provides that the terms of the agreement between the agent and work-seeker may thereafter only be varied if the work-seeker "agrees". In such circumstances, the new terms must then be communicated to the work-seeker no later than five business days after the agency and work-seeker reached such agreement.
- Mr Bennett goes on to argue that the terms of the contract entered into on 13 October 2004 were contained in two documents; that is to say, the basic artist agreement form itself and the terms and conditions made available on the website via the hyperlink. He says that it would have been "possible", within the meaning of Reg 14(2), for the relevant terms all to have been included in one document. Yet this was not done. Furthermore, copies of the relevant documents were never supplied to the Claimants, as would appear to be required by the provisions of Reg 14(2)(b).
- It is necessary to consider how, if at all, these requirements apply in circumstances where the contract is entered into online. That makes no difference, according to Mr Bennett's submission, since it would nonetheless be possible to supply the artist with a copy of the relevant terms and conditions – contained in one document.
- It is said that there was a contravention of the Regulations in that the Claimants were not given the opportunity to know exactly where they stood, at the time of entering into the artist agreement, and that the imposition of the re-engagement term was exactly the sort of matter which should have been drawn specifically to the attention of the Claimants.
- This then leads to the submission that the court should not regard the re-engagement term as forming part of the agreement (whatever the position would have been at common law). Accordingly, the Claimants should not be regarded as having been in breach by contracting with Bibis direct.
- Assuming that Mr Bennett is right in this primary submission, the next stage is to consider the position when the booking form was signed on 19 April 2006. If the re-engagement term was not included in the contract from the outset, in October 2004, it could only have been incorporated in the booking agreement by way of variation. That being so, it could only have any application to the Bibis contract if the Claimants could be shown to have agreed to the variation. That would be difficult to establish, since no one suggests that the re-engagement term was drawn to the Claimants' attention in April 2006 or that the Claimants agreed to it by way of variation.
- Mr Bennett had other points to make on the Regulations. Next he turned his attention to Reg 16, which is said to be relevant to the validity of the booking agreement. It is provided by Reg 14(1)(c) that it is necessary to obtain the agreement of the work-seeker to any terms mentioned in Reg 16. Mr Bennett places particular reliance upon the terms identified in Reg 16(e) and (f). Those are as follows:
"(e) A statement as to whether the work-seeker is required to give notice to terminate the contract between the work-seeker and the agency and, if so, a statement as to the length of the notice required; and
(f) A statement as to whether the work-seeker is entitled to receive notice of termination of the contract between the work-seeker and the agency and, if so, a statement of the length of the notice."
- Mr Bennett's point is that the documents relied upon by the Defendants contain no provision corresponding to these requirements. It would follow, he says, that the Claimants were not required to give any notice to terminate and thus would be permitted to do so at will. That being so, or so the argument runs, there would be no room for a re-engagement term since it would be inconsistent with termination at will. I am not convinced that this follows, however, since the Claimants would have been at liberty to terminate the agreement whenever they chose, subject to the proviso that if they wished to hire their services out to someone who had been introduced by the Second Defendant during the period of the artist agreement, they would be obliged to do so through the Second Defendant. There are obviously frequent examples of terms which have to be complied with after termination has taken place (e.g. those relating to obligations of confidence). Accordingly, if the re-engagement term is to be rejected, it must be for reasons other than Reg 16.
- Next, I was invited to consider Reg 6(1):
"Neither an agency nor an employment business may (whether by the inclusion of a term in a contract with a relevant work-seeker or otherwise) –
(a) subject or threaten to subject a relevant work-seeker to any detriment on the ground that –
(i) the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business, or
(ii) in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or
(b) require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker."
- The argument is that the re-engagement term would subvert these provisions because it would have the effect that the agreement could not be terminated until 12 months had passed from the last booking with Bibis. The supposed "detriment" would be that the work-seeker would be improperly locked in to an obligation only to use the services of the Second Defendant to play further concerts for a particular hirer.
- Moreover, the effect of Reg 6(1)(b) is that an agency is prohibited from requiring the work-seeker to notify the agency of the identity of any future employer. It would appear that the mischief against which this is directed is the risk of the agency disparaging the work-seeker in the eyes of the prospective employer. The relevance of the re-engagement term is that, if effective, it would require the work-seeker, even though he may have terminated his agreement with the Second Defendant, to notify it if he wished to do further work for an employer who had hitherto engaged his services through the Second Defendant. Again, however, I regard this as a rather contrived method of circumventing the re-engagement term. I must assess the question of whether it is effective or not by a more direct route.
- The material Regulations came into effect on 6 April 2004 and thus would be operative at the date of the artist agreement six months later. It seems that the Second Defendant had no inkling that it was governed by these provisions, but as a matter of construction I confess that I find it difficult to exclude their application. Thus Mr Bennett seems to be correct in submitting that there have been breaches of the provisions of Reg 14(2). Mr Bennett therefore relies upon the principle identified by Scrutton LJ in Anderson Ltd v Daniel [1924] 1 KB 138 at [147]:
"There have been a large number of cases decided on various statutes dealing with the circumstances in which a breach of a statutory provision renders illegal, or incapable of suit, a contract which it applies; but the general result of them is, I think, fairly clear. When the policy of the Act in question is to protect the general public or a class of persons by requiring that a contract shall be accompanied by certain formalities or conditions, and a penalty is imposed on the person omitting those formalities or conditions, the contract and its performance without those formalities or conditions is illegal, and cannot be sued upon by the person liable to the penalties. A case which affords a forcible illustration of that principle is Little v Poole 9 B & C 192, 201, where a statute provided that a vendor of coal should at the time of the delivery of it deliver also a signed certificate as to the quality of the coal, and the vendor, who had neglected to deliver the certificate, was held disentitled to recover the price."
It would thus appear to follow that, as between the Claimants and the Second Defendant, the re-engagement term would be unenforceable and, accordingly, the conduct of the Claimants in contracting with Ms Dawes directly would not represent an actionable breach.
- Mr Bennett goes on to argue that the particulars of justification relied upon as supporting a breach of the re-engagement term should be struck out. He says that the First Claimant's jibe as to the First Defendant's case on contract not "holding water" has turned out to be prescient. It matters not that the First Claimant reached that conclusion by a different reasoning process, and without reference to the impact of the 2003 Regulations. The issue of whether or not there was a breach of contract is simply to be determined objectively as a matter of law.
- He goes on to argue that all that would remain of the particulars are those at paragraphs 9.13 to 9.15, addressing the Landmarc contract. The Claimants' case is simply that they found themselves double-booked by mistake and had to cancel the Landmarc arrangement in consequence. It is said that this represents "the very minor breach of one contract". In itself, the Claimants argue that it would come nowhere near justifying the sting of the words complained of, which tend to suggest that the Claimants were not likely to turn up for a booking and were, at the least, rather casual in their attitude towards contractual obligations. Yet that, I believe, would be a matter for resolution at trial. Mr Bennett may ultimately prove to be correct, but I do not believe that the criteria for a strike-out have been fulfilled.
- It is appropriate now to turn to the Defendants' application to supplement the particulars of justification by reference to a different matter.
- They wish first to add a new Lucas-Box meaning to the effect that the First Claimant on behalf of the Claimants has "behaved in an unprofessional and untrustworthy manner". There is also proposed an additional sub-paragraph 9.16 to the particulars of justification:
"In his email of 27 March 2007 the First Claimant referred to one 'outstanding show' on 4 August 2007 which he said that he would 'honour'. This was the wedding of Michael Coombes which had been arranged by the Defendants. By email of 16 April 2007 to Mr Coombes the First Claimant agreed to play an additional 30 minute set provided that he was paid £275 in cash. The First Claimant stated: 'We can play an additional 30 min set but we would have to charge an additional £275 (cash) for that pro rata to the fee we would not charge the vat on that fee though and that would be direct to us guys and nothing to do with 13-11 Events!' The First Claimant was thereby seeking to evade paying the First Defendant's commission on the additional sum as well as VAT and (it is to be inferred) income tax. In the First Claimant's booking form signed by him on 25 April 2007 he requested that 'cash be paid on the night to avoid confusion with my paperwork and vat'. It is to be inferred from the manner in which the First Claimant conducted himself in relation to this booking, that he was generally amenable to seeking and accepting cash payments in order to evade the payment of tax."
- It is true that this proposed amendment would not go to the heart of the libel, but the words seem to me to be capable of bearing the meaning that the Claimants had behaved in an unprofessional and untrustworthy manner. What is more, in paragraph 8 of the amended particulars of claim, the Claimants themselves have pleaded that the words complained of meant that they were "grossly unprofessional and untrustworthy … ". Accordingly, it would seem to accord with principle that the Defendants should be allowed to justify the Claimants' chosen meaning, which is not confined to the alleged breach of the re-engagement term: see e.g. Maisel v Financial Times Ltd (1915) 84 LJKB 2145 and Gatley on Libel and Slander (11th edn) at para 28.21. I will therefore allow the amendment.
- My ruling as to the unenforceability of the re-engagement term, for statutory reasons, would preclude any reliance on those parts of the defence predicated upon a breach having taken place (such as paras 9.1.2, 9.9 and 9.12.4). They will need to be removed. In so far as the case depends on a cynical or cavalier attitude, those matters can still be argued. Likewise, the accusation of being unprofessional. There are some other references to "breach" in the particulars of justification, in respect of which there may have to be minor consequential amendments. I will hear counsel on this if necessary.
- The defence of fair comment is attacked on three grounds. First, it is said that no part of the words complained of is capable of being classified as comment; that is to say, a jury would be perverse to come to such a conclusion. It is necessary to remember, in this context, that the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear that they are not objectively verifiable: see e.g. Gatley on Libel and Slander (11th edn) at para 12.7. For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (e.g. in relation to someone's secret motives), it would be taken as comment rather than fact.
- Here, the real sting of the libel (although this may well be for the jury to decide in due course) would appear to be the allegations that the Claimants take a generally cavalier attitude to contractual obligations and are not to be trusted in business dealings. It seems to me that they are factual in character rather than the expression of opinions. All that is specifically relied upon is the allegation of a breach, which forms the subject-matter of the justification defence. It may be thought, therefore, to add very little.
- Also, I cannot see that a (one-sided) summary of a private contractual dispute can be said to constitute a matter of public interest. (I have already referred to the misquotation from First Claimant's email of 27 March, where the impression was given that he was speaking of contracts in general rather than of the particular re-engagement term sought to be imposed by the Defendants. This does not arise for consideration in the present context, although it would plainly be relevant if the plea of fair comment were to survive in determining whether or not it had been made with reference to "facts truly stated".)
- As to qualified privilege, Mr Price accepts that this is not a case of "off the peg" privilege (see e.g. Gatley at para 14.9) and his case is based upon the particular facts. Was there a common and corresponding interest in the subject-matter between the person(s) posting the message and the open ended class of persons liable to read it? There was no duty on the Defendants' part to put these allegations into the public domain. They concerned the parties' respective contentions regarding a private contractual dispute. Such a wide publication could hardly be said to be "fairly warranted by the occasion" (see Gatley, ibid).
- Mr Bennett took an additional point, applicable to both fair comment and qualified privilege, which was based on Regulation 28 of the 2003 Regulations. This provides for an obligation of confidentiality, imposed on employment agencies and businesses, in respect of "information relating to a work-seeker". This is directed inter alia to preventing any particular work-seeker being blacklisted. Mr Bennett submits that the Defendants' action in publishing the allegations complained of was of similar effect. He argues, therefore, that it is not open to the Defendants to argue that the allegations published in breach of this obligation of confidence can be legitimately regarded as a matter of public interest for the purposes of the fair comment defence. Moreover, there could hardly be a duty to communicate such material in the context of establishing qualified privilege. This argument, of course, depends upon the issue which I have already had to address on the applicability of the regulations to the Defendants' business. Since I have upheld Mr Bennett's general argument to that effect, he can correspondingly pray in aid Regulation 28. Nevertheless, it is possible to reach conclusions in relation to fair comment and qualified privilege without resort to that point.
- The overall effect of my conclusion is thus that the trial should proceed by reference only to the defence of justification (on a reduced basis) and the other defences will therefore be struck out.
