England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Garland)

		Royal Courts of Justice Strand London WC2 Monday 11th March, 2002

1. LORD JUSTICE BUXTON: This appeal from a decision of Garland J, given on 27th February 2001, concerns a most unhappy dispute in the world of amateur boxing. In order to put what I am about to say in some sort of context, I will first say, extremely briefly and subject to further expansion later in the judgment, that the essence of the dispute is between a Welsh association of amateur boxing clubs, the Welsh Amateur Boxing Federation ("WABF") and the Amateur Boxing Association of England ("ABAE"). WABF's claim in the proceedings was that it was entitled to be, and indeed was, a member of ABAE and was entitled to the rights and privileges attaching to that.
2. I must first deal, however, with the constitution of the action. The claim is said to be brought by 16 named individuals, described as suing on their own behalf and on behalf of the members of the WABF, and they cite as defendants the ABAE. They are able to do that without further technical difficulty because the ABAE is in fact a limited company, having been so formed fairly recently out of the previous governing body of amateur boxing in England, the Amateur Boxing Association. No complaint seems to have been made at the trial, or before it, as to the constitution of the action so far as the claimants are concerned. But in exchanges before the hearing of the appeal the point was taken, and in my judgement correctly taken, that the membership of the WABF consists of boxing clubs and not of individuals, either boxers or persons concerned in the administration. It did not seem to the court appropriate that that difficulty in itself should stand in the way of the case continuing, though I will say (at the moment as a footnote) that there are difficulties inherent in the constitution of the WABF by way of clubs rather than of individual boxers. It seemed to the court that it would be possible for the action to be put in its proper form by one or more of the individual gentlemen being named as representatives of their respective club, and those clubs being substituted for them as claimants. Mr Kerr QC, who appears for the defendant respondents, agreed that that was a possible course that could be taken, should the complaint as to the constitution of the action be persisted in. The matter was therefore allowed to proceed before us in its present form.
3. Garland J found in favour of the defendant, ABAE, and refused permission to appeal. That refusal when renewed to this court was equally upheld by the single judge on paper. The application for permission to appeal was then renewed to a two-judge constitution of this court, it being promoted then (as the case had been promoted throughout) by junior counsel and a well-known firm of solicitors. This court was minded to grant permission, at the same time pointing out the difficulties of the case and making clear that it was by no means encouraging the claimants as to the possible eventual outcome.
4. It is unfortunate that at that stage, but only at that stage, funds apparently ran out so far as the claimants were concerned, and therefore the appeal has not been moved before us by counsel. Rather, we have been addressed by one of the persons named as individual claimants, Mr Stuart Price, who is the secretary of WABF. He however, had the advantage, as we did of a detailed skeleton argument that had been produced by counsel before he withdrew from the case. It was, I have to say, not satisfactory that this court, having been prevailed upon to give permission to appeal, could not then be addressed by those who had pursued that permission. However, in the circumstances Mr Price himself has addressed us at considerable length and detail, and has advanced a number of arguments which I will consider in this judgment.
5. As I have said, we also had the benefit of the views of his lawyers on paper, and I do not also need to say that Mr Kerr has assisted us in the proper way, having sought to draw our attention to any matter that might assist the appellants. I am therefore satisfied that we have had a proper view of the case, and I would at this stage say that Mr Price has addressed us with care and moderation. He has clearly devoted a good deal of study both to the law of contract and also to the details of this case, of which, as secretary of WABF, he of course has the closest possible knowledge.
6. With that introduction as to the nature of the appeal, I need say something, by way of background in the first instance as, to the way in which this action arises. It appears that there has been for some years dissatisfaction amongst some Welsh boxing clubs with the performance of the Welsh Amateur Boxing Association ("WABA"). The court is not concerned with whether those complaints are justified or not. It has heard no evidence about them and they are irrelevant to this case, save by way of background. WABF was formed as an unincorporated association as an organisation for clubs that did not wish any longer to be represented by WABA.
7. The difficulty however of that situation is this. The wider interests and international interests of the sport are looked after by two organisations, the Association Internationale de Boxe Amateur ("AIBA"), which is the world-wide organisation, and the European Amateur Boxing Association ("EABA"). They in principle do not recognise more than one national association in each country. Whether that is a good or a bad arrangement is not, again, for us to comment on. The handicap for boxers whose clubs are not affiliated to the recognised national association is that boxers who are members of such clubs can only compete amongst other members of their own association and are not admitted to national or international competitions, including world and Olympic events. Furthermore, the Sports Council and those authorities who finance amateur sport in this country appear to take the same posture and do not fund or recognise more than one association. That therefore caused considerable difficulties for the WABF and its members. ABAE comes into the picture because although by its title it is concerned, and indeed in one respect by its rules that we look at in a minute it is concerned, with amateur boxing in England, it does extend its range beyond England itself because it has affiliated to it also Great Britain-wide organisations: the services, the police, the universities and the schools.
8. The chairman of ABAE, which has recently been reorganised (as I have already said) as a limited company, was at the relevant time a Cdr Roderick Robertson, to whom I will have to come shortly. It is clear from the evidence that Cdr Robertson was interested in assisting WABF and its constituent clubs. The first stage in the history of that, so far as we are concerned, was a meeting in Manchester in February 1999 which appears to have been called for a general review of boxing and its implications in western Europe. However, Cdr Robertson took the opportunity of entering into discussion with representatives of the WABF, WABA not being present. I might say by way of footnote that there was a similar problem in Scotland, in that various breakaway Scottish clubs had expressed dissatisfaction with the Scottish Amateur Boxing Association.
9. At that meeting, which was attended on behalf of WABF by Mr Price, there was discussion about whether WABF could affiliate to ABAE as, effectively, a region of England. As the judge found in paragraph 10 of his judgment:

"The Welsh came away under the impression that they were being encouraged to affiliate, and that if entry was denied - some of the ABAE board being hostile - it might be necessary to resort to legal proceedings."

10. Mr Price set out an account of what he understood had happened at that meeting, or in the discussions with Cdr Robertson, in a minute equally quoted by the judge, which apparently was not dissented from at the trial. That is set out in paragraph 10 of the judgment. I do not need to cite it in extenso, save that it indicated that the view of Cdr Robertson was not, apparently, wholly supported by all the directors of the English association. It said this:

"After an hour's discussion it was decided that England would take all the relevant rule books to their solicitors to see if there was anything that prohibited us having entry to England. Also to look at if entry was denied could England be taken to law by Wales. It was agreed that the initial cost of the solicitor would be shared between the two countries."

11. There then occurred an unsatisfactory development. The solicitors of ABAE were Messrs Edge Ellison, in which firm the affairs of ABAE were looked after by a Peter Millichip. He gave evidence in a witness statement unchallenged at the trial, indeed he was not called for cross-examination, that he had been asked to consider the question and had, on 26th April, advised Cdr Robertson on the telephone and effectively told him that since the principal object of ABAE was to promote the sport and practice of amateur boxing in England, any proposed affiliation would be ultra vires. He advised strongly against ABAE entering upon that course, more particularly without clearing it with AIBA. That advice does not seem to have been passed on to those responsible for the management of ABAE. A Mr Collier, who gave evidence at the trial and to whom again I will have to return, said that he had been misled by Cdr Robertson. In paragraph 16 of his judgment, the judge said this:

"I make no finding as to whether Commander Robertson deliberately misled Mr Collier and others, but I do find that he did in fact mislead them by ascribing to Mr Millichip advice which he had never given on an occasion when Mr Millichip was not even present."

12. That purported advice was that there was no barrier of a legal nature to the suggested affiliation.
13. Before all that happened, however, as agreed at Manchester, the WABF and ABAE had sought advice and had contributed £250 each towards the cost of it. That was the advice sought from Mr Millichip.
14. On 13th May 1999 a Mr Andrews, the Acting Company Secretary of ABAE, wrote to Mr Price thanking him for the cheque for £250, and making a number of observations. In his letter he said, first of all, that the ABA executive council had endorsed a paper written by Cdr Robertson called "A Way Forward". A Way Forward broadly envisaged that it would be desirable to form an overall organisation to manage the whole of amateur boxing in Great Britain. Mr Andrews then said this:

"The option of the Federations in Wales and Scotland affiliating to the ABAE Ltd as `regions' is raised in the paper, though not as a specific recommendation. The Board, at its meeting on 1 May, felt some caution was needed before embarking too quickly down this road. It is important to bring the clubs and regions in England with us and it will be included as an item for debate on the agenda of the next Executive Council on 17 July."

15. Mr Andrews then referred to the difficulties that might emerge with AIBA should ABAE be seen to be breaking the AIBA rules, because that might have detrimental consequences on boxing as a whole in Great Britain. Then he said this:

"... requirement is that you, WABF, furnish written proof that under UK law the WABF has a right to become an affiliated region of the ABAE Ltd, and that the ABAE Ltd must grant affiliated status to the WABF."

16. He then said that the chairman, that is Cdr Robertson, was keen to proceed with full integration, but the implications had to be fully considered and the repercussions weighed.
17. As we have seen, the advice originally was unfavourable, though it was not passed on in the way it should have been.
18. The judge referred to Mr Andrews' letter in paragraph 17 of his judgment, and he described the letter as having been written in "comparatively guarded terms". Shortly thereafter, Mr Price had a telephone conversation with Mr Millichip, who very properly told him that his firm, Edge Ellison, could not act any further for WABF because there might be a conflict of interest. Mr Millichip suggested that Mr Price should contact a Mr Rees, a partner in the firm of Morgan Cole.
19. There was then a telephone conversation between the two solicitors, Mr Millichip and Mr Bleddyn Rees, now representing WABF, on 1st June. The judge made a specific finding in the following terms, in paragraph 17 of his judgment:

"Mr Millichip said that he foresaw all sorts of difficulties with the proposed affiliation arising from ABAE's constitution and its affiliation to AIBA. It was agreed that Mr Bleddyn Rees would prepare a draft letter for Mr Millichip's comments, but this was never done and on 16th June Morgan Cole apologised to Mr Millichip for not doing so."

20. What happened then was that a letter was written by Morgan Cole, on behalf of WABF, dated 15th June. It is that letter that is relied upon in the points of claim as effectively an offer from WABF to join the ABAE. It is necessary to look at it in some detail. Morgan Cole said this:

"We act for the WABF who have instructed us to advise them in connection with their application to become an affiliated member of the Amateur Boxing Association of England (`ABAE') and we have been passed a copy of your letter to Mr Stuart Price, the Honorary Secretary of WABF dated 13 May 1999."

21. That is the letter to which I have already made reference. Then some details of WABF are set out, and then the solicitor said:

"Please accept this letter as our client's application for membership of the ABAE as an `Affiliated Regional Association' pursuant to section 2, paragraph 1 of your Rule Book. If there are any formal application forms you require completed please forward these and our clients will complete them forthwith."

22. Some reference was made to the history and as to affiliations to the ABAE of organisations not limited in their membership to England of the sort that I have already set out. Reference was then made to the paper "A Way Forward", and to the suggestion in it that we have already noted that affiliation could be done through the ABAE.
23. In paragraph 7 of the letter the solicitor said this:

"WABF believe that they are entitled to membership of the ABAE as of right and that failure to grant membership will give rise to a number of legal remedies ranging from rights pursuant to the European Convention on Human Rights, the Human Rights Act 1998, the Race Relations Act 1976, the Competition Act 1998, as well as European Competition Law and UK restraint of trade. We are sure that you will wish to avoid any such litigation which would be expensive and time-consuming."

24. Reference is made there to the rule book of the ABAE, with which the solicitors of WABF showed themselves to be well conversant. We should turn at this stage, since that was the basis upon which the letter was written, to that rule book. Particular reference was made to section 2.1 of the rule book, conveniently set out in paragraph 12 of the judge's judgment, but it is necessary, because this is an important aspect of the case, that I should repeat it. Section 2 in paragraphs 1 and 2 says this:

"1. An affiliated regional association may be formed subject to the consent of the ABA England Limited under the following conditions:

An affiliated regional association shall consist of a number of clubs all being affiliated to the ABA of England limited whose headquarters are situated within the area as may be from time to time defined by the ABA of England Limited except all clubs whose headquarters are situated within the area defined as the area for which the Greater London Council was formerly responsible on the 1st January 1986 which area be known as the London Regional ABA."

25. Then importantly in 2:

"On consent being given to the formation of an affiliated regional association the ABA of England Limited shall call a meeting of all clubs concerned to be convened at a suitable place as soon as practicable. At least fourteen days' notice shall be given to clubs within its area are entitled to be represented. This meeting shall be deemed to be the first Annual General Meeting of the new affiliated regional associations."

26. The judge also cited, and with respect correctly, parts of the AIBA Articles of Association, the only parts of which we need be concerned with are Article I "Only one association may represent a country" and Article 17A:

"Admission to membership. An affiliated association shall not admit to membership its association a club affiliated to another boxing association nor allow a member from another affiliated association to join a club for the purpose of evading any article, rule or regulation of the AIBA or any affiliated association."

27. The ABAE does not appear to have seen fit to take advice on the matters ventilated in paragraph 7 of Morgan Cole's letter, and we have not been addressed on them. I would only venture to comment that, had such advice been taken, I do not doubt that the solicitors consulted would have asked Messrs Morgan Cole to explain in considerably more detail how the various chapters of the law that they referred to bore upon this particular disagreement. I would also venture to comment that there might in some respects at least have been some difficulty in making those claims good.
28. However, that is not what happened. What happened was that the Executive Council of the ABAE met to consider this matter and were advised by Cdr Robertson that in the context of the possibility that he had raised in his paper "A Way Forward", this letter had been now received from Morgan Cole and the aim was to form a "Cambrian region", to which in some way WABF would affiliate. The committee were informed of the views expressed by Morgan Cole, not challenged or checked on by the ABAE, and then the Executive Committee was advised in the following terms:

"Due to the high costs associated with the defence of these issues and the disastrous financial consequences for the ABAE should we lose, the Board of Directors felt it wise to offer affiliation but sought the EC's approval to undertake such an important step."

29. It was then proposed and carried by a majority of 10 to 2 that:

"... a Cambrian Association be established and that through this new Association that the Welsh ABF be granted affiliation to the ABAE."

30. On the basis of that resolution, Cdr Robertson wrote both to the Welsh Amateur Boxing Federation and the Welsh Amateur Boxing Association, saying this:

"It was resolved by the Executive Council of the Amateur Boxing Association of England at its meeting on Saturday 17 July 1999, that a request from the Welsh Amateur Boxing Federation to affiliate to the ABAE Ltd be approved. Therefore, it will be our intention to establish a Cambria Regional Association, with membership available from 1 October 1999, that being the start of our 1999/2000 season."

31. Cdr Robertson, however, went on to indicate that it was not the wish of ABAE Ltd to extend its responsibilities further than it properly should do, and asked WABA and WABF to make every effort before 1st October to sink their differences and produce one organisation that could agree to administer amateur boxing in Wales.
32. That did not occur. What did however happen was that, the 28th July letter having been written, there were then serious second thoughts amongst those responsible for the Amateur Boxing Association of England. More particularly, as had been predicted by Mr Millichip, their solicitor, and as he had conveyed to WABF's solicitor in the conversation to which I have already referred, the AIBA expressed considerable reserve, to put the matter at its lowest, with regard to the proposed arrangements. There is, apparently, in the view of Mr Price some controversy as to the evidence that was given in that regard at the trial. But we need not enter into that because the only relevance of these developments is that, for reasons good or bad, the Amateur Boxing Association of England decided that it could not go forward with the proposal to affiliate with WABF. It was that decision that led to these proceedings.
33. What was sought before Garland J was, first, a declaration that WABF is a member of the defendant and is entitled to all rights, privileges and benefits of membership of the defendant; and, second, an injunction preventing ABAE from denying that WABF is a member, excluding WABF from membership, or preventing WABF seeking to exercise the rights and privileges that it should have as a member of ABAE.
34. Those claims, and the relief that is said to flow from them, cannot succeed unless it can be established that there was an effective contract between WABF and WABA creating or making WABF a member of the defendant; or alternatively, at the very least, putting ABAE in a position where they could not decline to admit WABF.
35. In his address to us today, Mr Price has laid great stress on the meeting in Manchester at which he was present and on the 13th May letter. I am quite satisfied that neither the discussion in Manchester nor the letter of 13th May can be relied upon as any basis for finding a contractual relationship. It has never been suggested in this case until today that either of those events was in fact or is a source of legal obligation on the part of ABAE. So that Mr Price should not fear that his lawyers made a mistake in that respect, I will say that it was quite right on their part not to rely on either that meeting or that letter.
36. Quite apart from the meeting and the letter not being in any sense the sort of encounter or the sort of document that could found a contractual obligation, or could lead to ABAE being contractually obliged in some way or other if WABF did in fact apply for membership, as we have seen from their terms the letter made it clear that despite the enthusiasm that Cdr Robertson, as the chairman, had for the proposal that WABF should affiliate, there was a great deal of doubt (and indeed, as the letter said, hostility) in ABAE towards the affiliation to it of WABF. Indeed, the letter of 13th May in its terms suggested a way of seeking to overcome that hostility or at least of nullifying it. We have also seen that subsequent to that letter, despite the fact that the advice received from Mr Millichip may not have been conveyed to WABF as it should have been, Mr Millichip had made clear to Mr Rees, who was by then acting for WABF and WABF alone, that there were substantial difficulties in the way of WABF joining. A case based on the 13th May letter was, as I have said, never pleaded. For the reasons that I have sought to give, it was not pleaded because it could not in this case be of assistance to WABF. If anything, its effect is contrary to their case.
37. It is correct, therefore, that this claim can only succeed if the 15th June letter is to be regarded as an offer. I am quite clear that it cannot in contractual terms be so regarded. It is important to remember that it was written quite advisedly by solicitors. There are two aspects of it to which I would venture to draw attention, quite apart from my overall and very strong view that in its general terms and arrangement, and against the background against which it was written, it cannot in any event be regarded as a contractual document. First of all, it is written on behalf of "our clients"; that is to say, WABF. I shall have to come back to the implication of that in the context of the ABAE rule book in a minute. It is also said to be an "application" for membership of ABAE. It is not just a verbal point in this context to say that it matters that the solicitor regarded what he was doing as applying for membership. When one applies for membership of an organisation one is, in my judgement, not making or not usually making an offer to join, one is asking the organisation to consider whether they will have you in at all; that is to say, it is at the most an invitation to treat.
38. But there is a further problem, and that is the reference to "our clients". The judge, at paragraph 20, dealt with this matter in these terms:

"There appeared to be some confusion in the Claimant's minds as to precisely who was going to be affiliated. The Particulars of Claim refer to the WABF. Reference to the Rules of ABAE make it clear that WABF would have to disappear and that it would be those of its constituent clubs together with any WABA clubs which were also invited, and which wished to apply for affiliation to ABAE, who would then form the Cambria Regional Association. The Claimant's Closing Submissions were made on the basis that the contract was to admit the WABF clubs, but the letter of 28th July was also sent to WABA. Although the second and third paragraphs were directed to encouraging WABA and WABF to resolve their differences, the first paragraph was capable of constituting an invitation to any Welsh club to apply for affiliation, and on 3rd August Mr Price circularised all Welsh clubs urging them to unite under one umbrella as Cambria in order to complete at the highest level."

39. Again, that is not just a technical or verbal difficulty. We have already seen, in the part of the rule book that was relied on in the 15th June 1999 letter, what would have to happen before this affiliation could take place. Under the rules a fairly complicated process would have to occur. For the Cambrian region to be formed there would have to be a meeting of the clubs at which they would constitute themselves that region. That would mean, as far as I can see, that under that process the WABF itself would have to disappear and the clubs in its membership, and also, as the judge pointed out, any other clubs who were minded to join in and were admitted by the ABAE, would become the Cambrian region of the ABAE.
40. It is not possible here simply to say, as apparently Cdr Robertson sought to say in his evidence, that the reality of it was, and counsel sought to say in his submissions that the reality of it was, that the clubs were going to affiliate. That was a long way down the line. Before all that could happen the processes that I have just indicated would have to take place, and they would not be processes that led to WABF as so described becoming a member of ABAE. As I say, this is not just technically looking at the rule book. It is very important in considering what objectively the people concerned with these exchanges thought they were doing. What they were doing was not entering into, in my judgement, a contract between ABAE and WABF. There is the further problem of Article 17A of the AIBA, which I have already cited. Mr Price agrees, as I understood in argument, that Article would require (if, as clearly it needed to, ABAE was going to continue to be affiliated to AIBA) that WABF disappeared and its members reappeared, together with anybody else who was interested, as part of a Cambrian region. That is another reason for thinking that there is no contractual relationship here.
41. That view is reinforced if one looks at the terms of the 28th July letter, which is relied on in paragraph 29 of the judge's judgment. He said this:

"In my judgment this letter does not amount to an acceptance of an offer. Even if the letter of 15th June constitutes an offer as opposed to applications on behalf of the constituent clubs to affiliate coupled with a threat of litigation if the applications were to be rejected, that of 28th July is no more than a statement of intention that affiliation of an as yet undefined number of clubs would be available not on, but from, 1st October 1999. The constituent clubs would first have to affiliate and then form the Association after ABAE had defined the relevant area. It amounts to no more than an expression of willingness to set the machinery of application for affiliation and the subsequent formation of the Regional Associate in motion at an uncertain date."

42. I respectfully agree, for the reasons that I have already set out.
43. In my judgement, therefore, it is impossible to say that there was any contractual relationship at any stage of this process. I come to that conclusion looking simply at the structure of the documents in the context in which they were put. I do not think therefore, like the judge, that any question of whether the parties had intent to create legal relations arises in this case. It does not arise because that is only an enquiry that has to be engaged in the law of contract once it can be demonstrated that in structural terms there has in fact been what would otherwise be a contract between the parties. Here there was not.
44. Similarly, like the judge, I do not need to look at questions of remedy. But I will say, as the judge said, that even if there had been thought to be a contractual relationship here, it would be entirely inappropriate for the court to start making orders requiring people to be admitted into membership of an association where, for very good reasons, that is to say the problem on the international front, they were, not to put it too finely, by the end of August clearly not wanted. This appeal therefore fails, as the case before the judge failed.
45. I would say two things, however. First, speaking entirely for myself, I can understand some sense of aggrievement on the part of WABF. Mr Price emphasised that he had taken part, as he had thought, with ABAE in the mutual instructing of the solicitors, the payment of the £250 and the encouragement that that appeared to give WABF in thinking that they would be accepted. But that was encouragement only, and as Mr Kerr properly pointed out to us in the context of the letter of 13th May properly read, and more particularly the exchanges between Mr Millichip and Mr Rees, encouragement of a very nuanced nature. There was no undertaking in any of those exchanges that they would be accepted as members, and there was clearly nothing approaching either an estoppel or a collateral contract arising out of those exchanges, purely negotiatory as they were, that would lead to the association thereafter being obliged to consider, much less to agree to, any application for admission.
46. The second thing I say is this. I cannot part from this appeal without expressing my own very great regret that matters have come to the pass that they have. Whatever might be said about professional boxing, there is no doubt that amateur boxing provides an important source of recreation. I cannot speak for Wales, but I do know that in the metropolis it is often the recreational facility, and the only one, seriously available in areas of social deprivation. It is nothing short of a tragedy that the affairs of the world of amateur boxing in Wales, which having heard him I accept entirely Mr Price has done his honest and determined best to promote, have become entangled in this litigation, with the exorbitant expense that it has involved. But unfortunately that is what has happened. These proceedings were commenced. They had to be taken through. It has not been possible to agree the matter, and we end up where we are with the dismissal of this appeal.
47. LORD JUSTICE LATHAM: I agree.
48. SIR DENIS HENRY: I also agree.
ORDER: Appeal dismissed with costs, with liberty to apply. (Order not part of approved judgment)