ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE TUGENDHAT
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE PATTEN
THE RIGHT HONOURABLE LADY JUSTICE RAFFERTY
| THE RUGBY FOOTBALL UNION
|- and -
Mr Ian Mill QC & Mr James Segan (instructed by Max Bitel Greene LLP) for the Respondent
Hearing dates: 6th December 2011
Crown Copyright ©
Lord Justice Longmore:
"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."
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?
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
"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.
"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 "
"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."
"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  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.
"[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."
"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 ..."
" 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."
"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."
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; and2) 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.
Intention to seek redress?
Necessity for an order?
Lord Justice Patten:
Lady Justice Rafferty: