ON APPEAL FROM Liverpool District Registry
HHJ Hodge QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE AIKENS
| John Burridge & Janet Burridge
||Appellants / Claimants
|- and -
|MPH Soccer Management Ltd
|- and -
|West Ham United plc
|- and -
||Respondent /Fourth party
WordWave International Limited
A Merrill Communications Company
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Wilson Horne (instructed by Mohindra Maini LLP) for the Respondent
Hearing date: 6 July 2011
Crown Copyright ©
The Chancellor :
(1) whether the debt formerly due by West Ham was due to Mr Harrison, as HH Judge Hodge QC thought, or to MPH, as District Judge Baker held.
(2) If the debt was due to Mr Harrison did he assign it to MPH before the making of the interim third party debt order on 1st October 2007?
In order to deal with those issues it is necessary to set out the facts in some detail.
"The fee due to the Agent is to be sent to the Football Association for onward transmission to the agent.
Please provide bank details for the Agent and ensure that all fees are forwarded in the appropriate currency.
Please contact the Football Associations Finance Department if assistance is required.
Bank Name Lloyds TSB
Branch [the address is given]
Sort code 30-93-71
Bank account number: 03717572 M.P.H. Soccer Management Ltd.
THE UNDERSIGNED CONFIRM THAT NO PAYMENT OTHER THAN THAT SPECIFIED BELOW WILL BE MADE IN RESPECT OF THIS AGREEMENT AND THE AGENT CONFIRMS THAT NO PAYMENT SHALL BE SOUGHT OR ACCEPTED FROM ANY OTHER PARTY TO THIS TRANSACTION"
The Declaration is then signed and dated by Mr Harrison. There is then added:
"WEST HAM UNITED FC will pay £900,000 + VAT to PETER HARRISON."
It is then signed by the secretary of West Ham and dated by him.
"17. In my judgment the following findings can be made:-
17.1 That the agreement made on the 19th January 2007 was made between West Ham and Peter Harrison of MPH and that he was as 'a natural person' to fall within the FA Rules was conducting the negotiations on behalf of MPH of which he was a director. I believe that I am supported in that view by the fact that he directed payments of the commission due from West Ham into MPH's bank account and the evidence of Mr Synnott.
17.2 In these circumstances the relationship of creditor and debtor existed between MPH and West Ham. Certainly that was the case so far as West Ham was concerned.
17.3 The debt was due and accruing as at the date of the I3PD Order on 1st October 2007."
Mr Synnott was a solicitor acting for West Ham. In his witness statement made on 16th February 2007 he had described the Representation Agreement as having been made between MPH and West Ham.
"It seems to me clear in the present case that the representation agreement dated 19th January 2007 is indeed an agreement made between West Ham United Football Club plc and Mr Peter Harrison as an individual. It is not an agreement made with MPH Soccer Management Limited; nor does it seem to me that that position is affected by the terms of the Declaration of Payment to a Licensed Agent. The commission, including the second instalment due on 1st October 2007, is payable to the agent, namely Mr Harrison. All that the Declaration of Payment does is to provide that the payment should be effected by way of a transfer through the Football Association to a bank account maintained by MPH Soccer Management Limited. It does not seem to me that that document constitutes any variation, novation or assignment in relation to Mr Harrison's status as a contracting party under the representation agreement of 19th January 2007. The payment is, subject to satisfaction of the relevant conditions, to become due and owing from West Ham United Football Club plc to Mr Harrison personally. Payment is to be effected through his company's bank account. There is, in my judgment, nothing to constitute MPH Soccer Management Limited a creditor of West Ham United Football Club plc. There is nothing to prevent Mr Harrison nominating another payee to receive the monies into its own account. On the evidence, that is what Mr Harrison would appear to have done by submitting an invoice in respect of the 1st October 2007 commission payment, not in the name of MPH Soccer Management Limited, but in the name of Platinum 4 Sports Limited."
"I should say that I reach that result with no sense of satisfaction. It does seem to me that the claimants have been strung along by Mr Harrison; and it may well be that the claimants have good reason for complaining about his conduct to the Football Association. But, as a matter of law, and with regret, it seems to me that there was no third party debt due from West Ham United Football Club plc to the judgment debtor, and therefore it was wrong in principle to make a final third party debt order in relation to the part of the commission payment which equalled the amount of the judgment debt and the costs."
"It seems to me that, on the documents, it is at least arguable that there was an assignment of any debt that West Ham owed Mr Harrison under the terms of the agreement of 19 January 2007 to MPH Soccer Management Ltd."
He did not give permission for any amendment to the appellant's notice. The requisite application was made by notice issued on 9th June 2011. We have heard full argument on the question of assignment. It was not suggested by either party that had this point been raised at the outset further or other evidence would have been advanced. Accordingly, I would give permission to Mr and Mrs Burridge to amend the appellant's notice as sought.
"But, says the Lord Chief Justice, "the document does not, on the face of it, purport to be an assignment nor use the language of an assignment." An equitable assignment does not always take that form. It may be addressed to the debtor. It may be couched in the language of command. It may be a courteous request. It may assume the form of mere permission. The language is immaterial if the meaning is plain. All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person."
"The fee due to the Agent is to be sent to the Football Association for onward transmission to the agent…[at] Lloyds TSB…Sort code 30-93-71…account number…03717572 M.P.H. Soccer Management Ltd."
To my mind that is a direction to pay MPH. It is given in relation to a debt payable by four instalments over a two and a half year period. There is nothing to suggest that it is revocable. Indeed a mere revocation would involve a breach of the FA Regulations. In terms of language it is quite sufficient to satisfy the test described by Lord Macnaghten in Wm Brandt's Sons & Co v Dunlop Rubber Co. Ltd  AC 454, 462. That is not to say that the consequences of such an assignment are not capable of novation with the agreement of all three parties, namely Mr Harrison, MPH and the FA, and that is what may have happened in relation to the payments to Platinum 4 Sports Ltd. But by then the interim third party debt order had intervened to inhibit their ability to do so in so far as the part retained was required to satisfy the order.
Lady Justice Hallett
Lord Justice Aikens