England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE TUGENDHAT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/12/2011

Lord Justice Longmore:

Introduction

1. This is a case brought by the Rugby Football Union ("the RFU") in respect of tickets for the Autumn International 2010 and the Six Nations 2011 matches held at their stadium at Twickenham; it alleges that Viagogo Ltd permitted a large number of these tickets to be advertised on their website for sale at prices far above the face value of the tickets. It is said that both the sellers and the purchasers of those tickets have committed actionable wrongs against the RFU which makes great efforts to prevent the sale of such tickets at an inflated price on what they would call a "black market" and that Viagogo have become innocently involved in such wrongdoing in such a manner that the court should make a Norwich Pharmacal order (see [1974] AC 133) requiring Viagogo to identify the persons advertising and selling such tickets and identifying the tickets so sold by block, row, seat number and price.
2. The RFU is a incorporated under the Industrial and Provident Societies Act 1965. As the owner of the stadium, the RFU could, if it chose, issue tickets at prices designed to maximise profits. But it does not do this because it is also the governing body for rugby union in England and as such it considers that it has responsibilities to the sport of rugby. Its main object is not to make profits. It uses its right to issue tickets to raise the revenue it needs to operate the Stadium and to cover its expenses. But it also issues them on terms designed to promote and develop the sport. It keeps ticket prices at what it regards as an affordable level to encourage interest and involvement in the sport by a wide section of the public. When it does use tickets to raise revenue, in many instances it does so indirectly, by issuing them as part of long term arrangements. These arrangements may be with debenture holders, sponsors and suppliers, and in connection with corporate hospitality packages. So individuals may become ticket holders without having paid cash to the RFU for the ticket. Indeed for the matches in issue in this case ordinary individuals cannot as such buy tickets at all but must obtain them from the RFU's chosen outlets.
3. Individuals who obtain tickets may wish to transfer their tickets to other people for many different reasons. The RFU raises no objection to ticket holders doing this under certain limited conditions. What the RFU does object to is when ticket holders advertise tickets for sale, or when they sell, or attempt to sell, their tickets for a price in excess of the value that appears on the face of the ticket. The RFU objects to this, because it considers that that tends to defeat the purpose for which it has kept the price affordable, and for which it has itself chosen to forgo revenue which it might otherwise have received.

The judgment

4. The judge (Tugendhat J) set out the relevant passage from Lord Reid's speech in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 at page 175:-

"If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."

5. The judge then identified 5 issues for decision:-

a) were arguable wrongs committed against the RFU?

b) was Viagogo mixed up in those arguable wrongs?

c) was the RFU intending to try to seek redress for those wrongs?

d) was disclosure of the information which the RFU required necessary for it to pursue that redress?

e) should the court exercise its discretion in favour of granting relief?

6. He then proceeded to decide:-

i) that it was eminently arguable that wrongs were committed against the RFU in that:-

1) individuals or others who were in a contractual relationship with the RFU were obliged not to sell tickets at more than their face value but had in fact done so;

2) anyone who sold a ticket at more than its face value was dealing with a document contrary to the way in which the RFU, as owner of that ticket, required it to be dealt with and was accordingly liable in the tort of conversion;

3) anyone who presented a ticket, for which he or she had paid more than its face value, was not entitled to enter the stadium on that basis and was accordingly a trespasser; anyone who had sold that ticket to the ultimate user intending him or her to use that ticket would be jointly liable for that trespass;

ii) (as accepted by Viagogo) that Viagogo had become mixed up or involved in that conduct;

iii) that the RFU intended to seek redress in some form from those revealed as sellers or advertisers for sale of those tickets;

iv) that it was necessary for the RFU to have disclosure of the information requested since there was no other way to get that information and, indeed, no other way to combat the black market;

v) that it was in the circumstances right to grant relief.

Submissions on Appeal

7. Viagogo challenged all the above decisions apart from (ii). But at the outset of the appeal Mr Martin Howe QC on their behalf applied to amend his notice of appeal to add a new paragraph 10 in the following terms:-

"10. The learned judge should have had regard to the fact that the order sought involved an interference with the fundamental rights of individuals under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and in the light of that fact should only have made the order if satisfied that it was both necessary and proportionate for the protection of the claimed rights of the RFU. He should have refused to make the order sought because it is neither necessary nor proportionate."

We reserved our position on the question whether Viagogo should have permission to amend their notice of appeal but permitted Mr Howe to develop the ground in argument (so that we could understand its scope) and invited Mr Ian Mill QC who appeared for the RFU to respond to such argument. Having heard the arguments on each side, we do not consider that the RFU was in any way prejudiced by having to respond to that ground and we now give permission retrospectively for the notice of appeal to be amended as asked by Viagogo.

8. The scope of the submission was that, while Article 7 of the Charter of Fundamental Rights of the European Union mirrored the entitlement of an individual to respect for his private and family life as contained in Article 8 of the European Convention on Human Rights, Article 8 of the Charter went further because it provided:-

"1. Everyone has the right to the protection of personal data concerning him or her;

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law …"

9. This Article meant, according to Mr Howe, that the court had to have regard to the Data Protection Directive of the European Parliament and of the Council of the European Union (Directive 95/46/EC) ("the Directive") and indeed to the provisions of the Data Protection Act 1998 which enacted the Directive into the law of the United Kingdom. This statute, mirroring the Directive, provides in section 35:-

"Disclosures required by law or made in connection with legal proceedings etc.

1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary –

a) For the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

b) For the purpose of obtaining legal advice,

or is otherwise necessary for the purposes of establishing, exercising or defending legal rights."

10. Mr Howe submitted that section 35 and indeed the Directive and the 1998 Act as a whole had to be read subject to jurisprudence of the European Court of Justice which laid down that any interference with or disclosure of individuals' personal data could only occur if it was both "strictly necessary" and "proportionate" to the aim sought to be achieved, see Case C-73/07 of the 16^th December 2008 known as the Satakunnen case [2008] ECR 1-9831 paragraphs 52-56 and Case C-92/09 of 9^th November 2010 Schecke v Land Hessen paras 72-77.
11. Mr Howe accepted that the Norwich Pharmacal jurisdiction was authorised by law and, when applied to individuals, did not fall foul of the Directive or the 1998 Act provided that the conditions of its application met the requirements of the case law of the European Court. He submitted that the recent re-statement of the jurisdiction in President of the State of Equatorial Guinea v RBS International [2006] UKPC 7 had not predicted these developments and would, as far as individuals were concerned, need reformulation. In that case Lord Bingham of Cornhill and Lord Hoffmann in jointly delivering judgment of the Privy Council had said this:-

"It is true that in some cases the word "necessary" has been used, echoing or employing the language of order 24, rule 13 of the Rules of the Supreme Court. But, as Templeman LJ observed in British Steel Corporation v Granada Television Limited [1981] AC 1096, 1132, "The remedy of discovery is intended in the final analysis to enable justice to be done". Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straightforward and available means of finding out, it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they have no straightforward or available, or any, means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must be just and convenient in the interests of justice to grant relief, or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance"

Mr Howe submitted that the words "just and convenient" were indeed different in substance from the words "necessary" and "proportionate" which were to be preferred.

12. None of these arguments were put to the judge in these precise terms but, as Mr Mill pointed out, the judge did consider whether disclosure was necessary in issue (iv) and effectively considered proportionality when he came to the exercise of discretion in issue (v). So the final battleground was whether the judge in the light of the European jurisprudence could be said to have been too easily persuaded that the relief sought was necessary and proportionate.
13. After this perhaps rather elaborate preamble I turn therefore to the issues in the order in which I have listed them above.

Arguable wrongs?

14. For this purpose it is necessary to set out numerous provisions in relation to the RFU's ticketing system. At least half the tickets for the matches at the stadium are distributed through Member Clubs. The RFU distributes tickets to such clubs or others (such as sponsors) on terms headed "Ticket Distribution Conditions" which include the following:-

"[RFU] sell and issue tickets for events at the stadium at Rugby Road, Twickenham ("the Stadium") only upon these Ticket Distribution Conditions and by applying for a ticket, the prospective acquirer ("the purchaser") shall be deemed to have accepted the following Conditions:

1) A ticket may not be sold or transferred, save if more than one ticket is issued to a purchaser, such tickets may be used only by the purchaser and a person accompanying the purchaser to the Stadium and there shall be no resale or transfer of a ticket above face value. Tickets cannot be advertised for transfer or sale. However, these conditions are not contravened

- by provision of an additional ticket by a purchaser to such an accompanying person free of charge, provided that such person accompanies the purchaser to the Stadium and does not transfer the ticket. For the avoidance of doubt, if the purchaser is a sponsor, such "accompanying person" must be a guest of such sponsor; or

- if the purchaser is a RFU licensed hospitality provider, by the provision of a ticket by such operations as part of a package which includes the provision of corporate hospitality services.

2) A ticket entitles the holder, subject to compliance with these conditions in all respects to admission to the Stadium for the event, to occupy the seat in question and to no additional entitlement.

3) The RFU sells and issues tickets for events only through the RFU's authorised ticket sales outlets and its authorised distributors.

4) Any ticket acquired in breach of these Conditions shall be null and void ("unlawful ticket") and all rights conferred or evidenced by such unlawful ticket shall be extinguished. The RFU shall be entitled to refuse to admit the holder of an unlawful ticket to the Stadium for the event (and for one or more future events or for a fixed term) and may eject such holder from the Stadium even after admission. Any breach of these Conditions by the purchaser and/or the distributor which supplies the tickets to the purchaser shall constitute a breach by the distributor of the Ticket Application Conditions which the distributor has accepted

…

8) each purchaser must complete a ticket application form

…

9) every ticket remains the property of the RFU at all times."

15. When a club applies for tickets the form to be completed includes the following wording:-

"Declaration: as confirmation that this application is made on behalf of the club, the club's President/Chairman/Chief Executive (who must be different from the Ticket Secretary) must sign below. By signing below, you are also acknowledging that you have read, acknowledged and agreed on behalf of the club the Ticket Application Conditions. Ticket Distribution Conditions, Terms of Admission … which are available on www.rfu.com/tickets ..."

16. Clubs which apply for an allocation do not themselves acquire title to the tickets. Rather, they become agents of the RFU to distribute those tickets. This is provided for by the Ticket Application Conditions for Member Clubs, which include the following:-

"…RFU allocates and issues tickets for events and rugby matches at Twickenham to RFU Member Clubs ("Club(s)") only upon these ticket Application Conditions and by applying for an allocation of tickets the club accepts these Conditions.

If a Club has any concern that it may be supplying a ticket to anyone (including a club member) in breach of RFU policy or these Conditions (or the Ticket Distribution Conditions) it should contact the RFU legal department for advice.

In these Ticket Application Terms and Conditions the following Definitions will apply …

"Transferee" means a club Licensed Operator Genuine Sponsor or Member [all of which are defined]

Applying for Tickets

A. The RFU is authorising the Club as its agent (my emphasis) to distribute RFU Allocated tickets following receipt of the Club's application form and bought by the club to Transferees.

B. The full price of the tickets applied for must be paid…

Transfer of Tickets

C. The Club may only transfer a ticket to a Transferee subject to Condition D. The club may charge any Transferee an administration fee of up to £5 per ticket. Other than to a Licensed Operator or under Condition K below, a ticket shall not be supplied (except for the said administration fee) at above face value.

D. Only RFU Allocated Tickets may be transferred to Genuine Sponsors …

G. The Club must ensure that:

1. The terms are incorporated into all agreements to supply tickets to Transferees

2. It only supplies to Transferees on terms that those to whom it applies tickets cannot sell or offer for sale or transfer those tickets."

17. The "terms of admission" are printed on each ticket and include the following:-

"The presentation of a ticket in order to gain admission to the Stadium (including the outer concourse) … shall constitute acceptance by the ticket holder of the following terms upon which the RFU will admit the ticket holder:

1) TICKETS ARE SOLD OR OTHERWISE ISSUED BY THE RFU ONLY TO APPLICANTS WHO HAVE AGREED TO OBSERVE THE TICKET DISTRIBUTION CONDITIONS (AVAILABLE UPON REQUEST FROM THE RFU TICKET OFFICE). IF ANY TICKET IS ACQUIRED IN BREACH OF SUCH TICKET DISTRIBUTION CONDITIONS, THE RFU MAY REFUSE TO ADMIT SUCH A TICKET HOLDER TO THE STADIUM AND MAY EJECT SUCH TICKET HOLDER FROM THE STADIUM EVEN AFTER ADMISSION AND, IN ADDITION, THE DISTRIBUTOR TO WHOM THE TICKET IS ISSUED BY THE RFU MAY BE LIABLE FOR SANCTIONS IMPOSED BY THE RFU …

…

7) The ticket remains the property of the RFU at all times …

9) It is prohibited to sell or offer to sell tickets at a price in excess of face value. In addition it is prohibited to advertise the sale of this ticket in any form including on any online auction or any other website. Any such action will result in the cancellation of the ticket."

18. The conclusion from all this is (arguably):-

a) that there was a contract made between the Member Club (or other distributor) and the RFU on terms:-

1) that the club (or other distributor) will not sell the ticket for more than its face value; and

2) that the distributor will impose a term on any transfers that any transferee will not sell any ticket he or she acquires for more than its face value;

b) that (whether at common law or pursuant to the Contracts (Rights of Third Parties) Act 1999) there was a contract between the RFU and the first transferee of any ticket that such first transferee will not sell the ticket for more than its face value;

c) that there was a contract between the RFU and any holder of a ticket:-

1) that the RFU will permit the holder of such ticket to enter the stadium for the relevant match provided that the holder has not paid more than the face value of the ticket; and

2) that such holder will not himself sell the ticket for more than its face value.

19. Since it was also clear from the terms of the ticket that it would be cancelled if it was sold or advertised for sale for more than its face value, it is arguable that any user of such ticket was a trespasser as and when he entered the ground with a ticket for which he had paid more than face value and that the seller to him will have incited or encouraged such trespass in such a way as to make that seller jointly liable for such trespass. Although there is little authority for such a proposition, it is a fair inference that, if Mr Said had managed to evade the vigilance of the doorman at the Palace Theatre and occupy the seat number printed on his ticket, Sir Alfred Butt would have been entitled to eject him from his seat as a trespasser, see Said v Butt [1920] 3 K B 497.
20. There is ample evidence that breaches of the above arguable contracts and trespasses occurred. In these circumstances it is not necessary to consider whether any conversion of the tickets also occurred – a much more problematic proposition.
21. Viagogo sought to argue that neither the original recipient nor the first transferee were in breach of contract if they sold the ticket for more than face value. But that is a hopeless argument in the case of the original recipient and a very difficult argument in the case of any first transferee who acquired a ticket (as most of them will have done) from a distributor who distributed tickets pursuant to the Ticket Distribution Conditions and the Ticket Application Conditions. As to trespass Viagogo's argument was that, before any ticket holder could be a trespasser, the RFU had to take some action to avoid the contract contained in the ticket but the ticket itself says that the sale, offer of sale or advertisement at more than the ticket's face value "will result in the cancellation of the ticket". Even if, moreover, the ticket was not cancelled by some formal action of the RFU, that would make no difference to the fact that a ticket holder would know that he was making use of a ticket in breach of the RFU's stated policy that tickets should not be re-sold or bought for more than their face value.
22. I do not consider therefore that the judge was wrong to hold that it was arguable that wrongs had been committed against the RFU by unidentified persons. Viagogo has always accepted that, if there were such arguable wrongs, they had become mixed up with them and I can proceed to consider whether there was evidence that the RFU would seek redress for such wrongs.

Intention to seek redress?

23. Viagogo submitted that there was no sufficient evidence of any intention on the part of the RFU to seek any legal, or indeed any, redress. The argument is a curious one since it presupposes that the RFU has made a substantial investment of time, money and intellectual energy in making 21 test purchases and pursuing this application all for no effective purpose. That can hardly be likely.
24. Viagogo make two points: (1) that the alleged wrongs are artificial and (2) that any redress sought will not be "substantial". Even if it is right for Viagogo to submit that the real object of the proceedings may not be to pursue the original recipients of the tickets (who may in most cases have abided by the terms of the Distribution and Application Conditions) or the final holders who occupied the seats but rather the intermediate transferees who made most of the profit, I do not regard the claims against such transferees as "artificial"; even if it turns out in the end that claims for damages for breach of contract and incitement to trespass are (for whatever reason) likely to fail and are not pursued, the RFU may still have good prospects of obtaining injunctive relief for the future or other legitimate reasons for exposing the conduct of the intermediate transferees to the light of day. That would be redress adequate for the operation of the Norwich Pharmacal principle which does not, in any event, have to be redress in the form of legal proceedings, see BSC v Granada [1981] AC 1096, 1132 a case where the employer was unlikely to have sued his employee as opposed to dismissing or taking some other sanction against him.

Necessity for an order?

25. The judge concluded that the RFU had no available means of finding out the information it was seeking other than through Viagogo and that the making of the order was, therefore, necessary. In his oral argument Mr Howe did not suggest that there were such other available means of obtaining such information. His submission was rather that the RFU had the remedy in their own hands because, instead of issuing tickets to Members Clubs and sponsors, they could issue them only to named individual applicants and require them to present personal identification in the form of a passport or other document when they entered the ground. That, of course, would be wholly inimical to the way in which the RFU wishes to distribute tickets for important matches and it can hardly be appropriate for the owner of a website to require the RFU to make such fundamental alteration to its ticketing operations.
26. In the absence of any plausible suggestion as to how the RFU could obtain information as to the identity of those selling tickets for more than their face value, it seems to me that a Norwich Pharmacal order is, indeed, necessary and I would not disagree with the judge under this head.

Proportionality

27. The judge did not in terms deal with proportionality or with the new argument that it would not be proportionate to make a Norwich Pharmacal order because it would be ordering Viagogo to disclose personal data contrary to the Data Protection Directive and the 1998 Act. It is, however, recognised by both the Directive and the Act that such data may have to be disclosed pursuant to a court order. The question, therefore, is whether it is proportionate for the court to make an order that requires disclosure of such data.
28. Once it is established that there is arguable wrongdoing by unidentified individuals and that there is no realistic way of discovering the arguable wrong doers other than a Norwich Pharmacal order, it will generally be proportionate to make such an order revealing the identity of those arguable wrongdoers. There can be no reasonable expectation of privacy in respect of data which reveal such arguable wrongs and Viagogo's own conditions of business point out to their customers that there may be circumstances in which their personal data will be passed on to others. Mr Mill submitted that the acceptance of such conditions constituted a waiver by Viagogo's customers of confidentiality in their personal data. I doubt if that is right but the fact that Viagogo's conditions of business contemplate that personal data of their customers may be revealed is not wholly irrelevant to proportionality.
29. I would prefer to say that the requirement that Viagogo disclose a limited amount of personal data in this case is proportionate because there is no other way in which arguable wrongdoing can be exposed. In this case, as in many other Norwich Pharmacal cases, necessity and proportionality may go hand in hand. The terms of the order must, of course, be proportionate but Viagogo have never suggested that some more limited form of order would be appropriate. The only personal data ordered to be revealed are the names and addresses of the arguable wrongdoers. That seems to me to be both proportionate and just.

Discretion

30. Of course, the judge ultimately has a discretion whether to make an order or not. But it is impossible to fault his discretion once it is clear that the order is necessary and proportionate.

Conclusion

31. I would dismiss this appeal.

Lord Justice Patten:

32. I agree.

Lady Justice Rafferty:

33. I also agree.