England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
COMMERCIAL COURT
THE HONOURABLE MR JUSTICE TEARE
[2014] EWHC 19 (Comm)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/03/2015

Lord Justice Christopher Clarke:

1. Unite the Union ("Unite"), was formed on 27 April 2007 through the merger of two other trade unions, the Transport and General Workers' Union ("T & G") and Amicus ("Amicus"). Upon the merger all the property and rights of T & G and Amicus vested in Unite.
2. Liverpool Victoria Banking Services Ltd, Liverpool Victoria Financial Advice Services Ltd, Liverpool Victoria Insurance Company Ltd, Liverpool Victoria Portfolio Managers Ltd and Liverpool Victoria Friendly Society Ltd (collectively "LV") are a group of companies doing what their respective names indicate, including the sale of insurance and other financial products.
3. The issue that divides the parties is as to the extent of Unite's entitlement to commission from LV under two agreements made with LV before the merger, under which LV agreed to provide various services to the members of each union and the relevant union would, in certain circumstances, be entitled to commission.

The background to the agreements

4. The agreement between LV and the T & G ("the T & G Agreement") was dated 2 June 2005 and took effect from 1 January 2005. The agreement between LV and Amicus (the Amicus Agreement") was made on 1 July 2006. Each Agreement was for an initial term of 5 years. Both were terminated by LV with effect from 18 September 2012.
5. When the two Agreements (referred to by the judge as "the affinity agreements") were made there was already in existence, and had been for several years, what was known as an "affinity scheme", under which LV provided various types of insurance, e.g. home and motor insurance, to members of the relevant union and their dependants. The terms on which LV did so gave members of the unions a discount on the premium which LV would charge those who were not members for insurance of the type in question e.g. home and motor insurance. In the case of both T & G and Amicus LV had purchased an affinity marketing company which had facilitated deals between unions and insurers and received a commission from the insurer for products which it promoted to the members of the relevant union. After the purchase LV supplied the insurance itself. Details of the history are set out in paras [18] - [23] of the judgement. I refer to the LV insurance offered to union members and dependants at discounted premia under the affinity schemes as "scheme products".
6. In the judge's words:

"9 The aim or object of the affinity agreements was to enable the members of the union to obtain insurance and other services at discounted rates from a company whose services were endorsed by the union. This was common ground between the parties even though, remarkably, the agreements did not mention any discounted rates. That aim or objective was to be achieved by the union providing LV with access to its membership in order that LV might market its insurance and other services to the membership. In return the union was entitled to a share of the annual premium (and other revenue) earned by LV."

7. The way in which the affinity scheme was intended to work was that union members would contact LV on the telephone number or via the website specified in the literature sent to members. The use of these so-called "dedicated channels" would, of itself, tell LV that the customer was a union member or dependant and the scheme product would be sold to him/her at a discounted price.
8. Both parties, as the judge found [24], were well aware:

"that when LV marketed its products to members of T & G and Amicus the members were invited to purchase the products at discounted prices using the designated telephone number or website channels identified in the marketing materials sent to them".

In return for facilitating the marketing of these discounted products Unite would receive commission on their sale.

9. During the course of the trial it appeared that some people had sought insurance from LV not using the dedicated channels; but had revealed that they were members of the relevant Union or dependants. In such cases LV would sell them a scheme product and give Unite the appropriate commission. At the trial LV said that this was done as a concession; and that commission was only due when the member responded to LV through the dedicated channels. The judge disagreed [40]. Before us LV accepted that commission was payable in respect of any scheme product.
10. When the Agreements were made, the focus of LV's insurance activity was on selling insurance through affinity schemes, as opposed to selling it to the general public. However, the fact that LV was also marketing insurance to the general public was, as the judge found [24] part of the background knowledge reasonably available to both parties. Had the unions thought about it, it would have been apparent to them that some of their members or their dependants would end up buying insurance products as marketed to the general public outside the affinity schemes. (The terms of these products were very similar to those applicable under the affinity scheme but not necessarily identical; there might, for instance, be optional additional benefits such as legal expenses cover). As time passed LV came to devote more effort to selling insurance by retail advertising or marketing directed towards the general public, e.g. on the internet or by sponsoring rugby matches.

The T & G Agreement

11. Recital A to the T & G Agreement read as follows:

"WHEREAS

(A) Liverpool Victoria, or its duly authorised associate and subsidiary companies or any of them where applicable wishes to provide or procure the provision of certain insurance, financial, consumer and ancillary products and services and advice as set out in Clause 3 ("the Services") to individual members and employees of T & G, and the dependants of any such persons (together "T & G Members") on terms as may from time to time be agreed between T & G and Liverpool Victoria and to market and publicise the same to T & G Members."

12. Clause 1 contained a number of definitions including:

"Annual Premium" means the sum paid by a T & G Member in respect of a relevant product as set out in Schedule 1.

"Loan New Business" means the total sums advanced to T & G Members in the 12 months from the Start Date or within each 12 month period thereafter less any amount used to settle existing Loans.

"Net Retained Initial Commission" means the amount of initial commission or mortgage procuration fees earned and retained by Liverpool Victoria in respect of the provision of independent financial advice to T & G Members after deducting any amount paid to, or shared with T & G Members.

"Relevant Business" means the provision of the services set out and defined in sub-clauses 3.1.1, 3.1.2 and 3.1.4.

"Services" means the services set out and defined in clause 3.

"T & G Members" means individual members and employees of T & G and the dependants of any such person".

13. Clause 2 provided that the start date was 1 January 2005. Clause 3 provided:

"3.1 Liverpool Victoria is hereby appointed by T & G to provide the Services to T & G Members from the Start Date, at all times materially in accordance with any current prevailing regulations governing the provision of the Services.

The Services are defined as:

3.1.1. advising those T & G Members who reasonably request such advice in respect of insurance and financial related products and services and marketing such products and services to T & G Members from time to time as set out in Schedule 1, as amended by agreement in writing from time to time by T & G and Liverpool Victoria;

3.1.2 providing a claims handling and settlement service to T & G Members in respect of Relevant Business placed by Liverpool Victoria on their behalf;

3.1.3 negotiating, placing or processing Relevant Business in the insurance or other relevant markets; and

3.1.4 such other activities, including but not limited to banking, financial advice and consumer related products as may be agreed in writing by Amicus and Liverpool Victoria from time to time.

3.2. Throughout the period of this Agreement, Liverpool Victoria will at Liverpool Victoria's cost be responsible for:

3.2.1 providing and ensuring the accuracy and quality of all technical advice relating to the Services;

3.2.1 producing all such documentation and publicity material in connection with the Services as Liverpool Victoria may in its discretion but after regular consultation with T & G consider to be necessary."

14. Clause 4 imposed a number of duties on T & G. These included a duty (i) to provide LV with access to T & G Members through the T & G distribution and organisational networks for the sole purpose of enabling LV to perform and promote the Services according to criteria agreed within the Annual Marketing Plan and otherwise from time to time between T & G and LV (4.1.1); and (ii) to provide LV with direct access to T & G membership data for the purpose of promoting and performing the Services to T & G Members (4.1.2).
15. Clause 9.1. entitled "Commission and Fees" provided:

"9.1. In consideration for the obligations and undertakings of T & G in this Agreement Liverpool Victoria will pay to T & G a share of the Annual Premium, Loan New Business, and Net Retained Initial Commission earned by Liverpool Victoria in respect of the Services during the period of the Agreement as set out in Schedule 1 …"

16. Schedule 1 read as follows

COMMISSION and FEE PAYMENTS to T&G

Product Type	% of Annual Premium or Loan New Business	% of Net Retained Initial Commission
Home – New Business	1.5%
Home – Renewal	1.5%
Motor – New Business	1.5%
Motor – Renewal	1.5%
Loans – New Business	1.0%
LV IFAs New Business		7.0%
Personal Accident	10%

The Amicus Agreement

17. The Amicus Agreement was in very similar terms. By clause 2 its start date was 1 July 2006. Clause 10 1, entitled "Commission and Fees", provided:

"10.1. In consideration for the obligations and undertakings of Amicus in the Agreement Liverpool Victoria will pay to Amicus a share of the Annual Premium, Annual Premium Content and Net Retained Initial Commission in respect of the Services during the period of this Agreement in accordance with Schedule 1."

As is apparent the words "earned by Liverpool Victoria" are missing.

18. There were some other differences between the T & G and Amicus Agreements. It is not necessary to address these differences save to point out that the products and commission levels were not entirely the same as in the T & G Agreement.

The dispute

19. The dispute concerns insurance products that were sold by LV to members or employees of either union or their dependants (who are not defined in either Agreement), which were not scheme products, i.e. insurance in relation to which the members/dependants/employees (hereafter "Members") did not receive the discount for which the affinity scheme provided.
20. The dispute arose in this way. In October 2009 LV gave a presentation to Unite which referred to some 51,026 policies sold to Unite members which had not been included in the Unite "book" of business. This was the business contracted through the affinity scheme. It appeared to Unite that some further commissions might be due. However, no claim was made at this stage. On 30 June 2011 Unite's new Director of Legal, Membership and Affiliated Services expressed Unite's wish to receive commission for sale to Unite members regardless of the channel through which the members approached LV. Internal calculations at LV revealed that as at 8 June 2001 72,548 Unite members held a motor insurance policy underwritten by LV which had been purchased through channels other than the dedicated channels. Of those 57,533 had been purchased through channels open to the general public and the balance had been purchased through other union schemes. Only 29,829 policies had been issued to Unite members under the Unite scheme. These figures do not appear to have been passed on to Unite at the time that they were compiled; but they are the background to the dispute that has arisen.
21. Unite submits that it is entitled to commission on all insurance sold by LV to any Member during the currency of the Agreements whether or not at a discount. LV's case is that Unite is only entitled to commission in respect of scheme products.
22. The judge was not persuaded by either submission. In his view [42]:

"commission is payable when there is a causal connection between the Services and the earning of premium. That is the meaning of the phrase "in respect of the Services" which is consistent with the aim or objective of the agreements. I do not consider that there is any ambiguity in the construction of that phrase in the context of the agreements as a whole which would justify examining which of two possible constructions is more consistent with business common sense. The meaning which, in my judgment, the phrase reasonably bears certainly does not flout "business common sense". On the contrary, linking the payment of commission to premium which is earned as a result of the marketing made possible by the agreements is consistent with business common sense."

23. It is apparent that what the judge meant by "the marketing" was, and was only, the marketing which LV was enabled to perform by reason of having been provided with access to the union members. In [30] he said:

"The width of "the Services" must depend upon the definition of the Services in clause 3.1, read in the light of the agreement as a whole. When one has regard to the agreement as a whole it is clear, in my judgment, that the advice and marketing which forms part of the definition of "the Services" was intended to be that advice and marketing to union members which LV was enabled to perform by reason of having been provided with access to the union membership by the union pursuant to its obligations under the agreement. For example, clause 3.2 contemplated that T&G was to be regularly consulted with regard to documentation and publicity material. It cannot have been intended that T&G would be consulted about marketing material to the general public. Clause 3.4 entitled LV to use the T&G name and logo for the marketing and promotion to T&G members. Such marketing must have been that directed at T&G members rather than to the general public. Clause 4.1 obliged the union to provide LV with access to T&G members "according to the criteria agreed within the Annual Marketing Plan and otherwise from time to time [agreed] between T&G and LV." This again suggests that the marketing contemplated by the agreement must be that which is directed at the union members rather than at the general public because T&G would hardly be involved in agreeing criteria for marketing to the general public. Finally, clause 4.5.1 provided that "all marketing, advertising or promotional material relating to the Services which [LV] wishes to include in any communication to be sent by T&G or to otherwise publish or distribute under clause 4.5 shall be submitted by [LV] to T&G for prior approval…" T&G would hardly be expected to approve marketing material directed at the general public."

24. What, therefore, I take the judge to have meant is that, in addition to receiving commission on scheme products, Unite would receive commission if LV's marketing efforts, carried out in accordance with the clauses to which he referred, was "an" effective cause of the customer purchasing non-scheme product insurance (e.g. motor insurance without the discount). As he put it in [32]:

".. I do not consider that any selling of Schedule 1 products to union members is within the definition of the Services…..the selling in question must be that which follows upon the advice and marketing to union members".

25. The judge regarded the words "earned in respect of the Services" as importing a causal connection between the Services and the premium [33]. He rejected the contention that the causal connection must consist of the sale being through one of the dedicated channels specified in the marketing literature [38] – [42].

Discussion

26. If LV's marketing efforts in respect of scheme products were a cause of the Member purchasing any particular insurance, it might be thought that he would do so using one of the dedicated channels which would show him to be a Member and entitle him to a discount under the scheme. But, as the judge pointed out [41], not all of LV's marketing to Members provided the designated telephone number or website address. Some of it was designed to make the LV "brand" attractive to members and to associate LV with the union - what came to be called in evidence the "halo" effect. So it was possible that a Member who had received such marketing might buy insurance from LV even though he had never read of, or noted, the designated telephone number or the website address.
27. Members who use a dedicated channel or declare themselves as Members thereby certify their entitlement to a discount under the scheme (and Unite's entitlement to a commission). The cases caught by the judge's interpretation but not by that of LV, are, therefore, those where the Member has neither used a dedicated channel nor declared that he is a Member. The judge's interpretation thus contemplates that a Member might (i) learn of LV as a result of its advertising to Members; (ii) fail to make use of the dedicated channels (perhaps because he had lost, or never seen the special number or website, or because he was renewing a policy held for many years or for some other reason); (iii) contact LV by a route (telephone or website) specified in LV's marketing material to the general public; but (iv) fail to declare that he was a Member (or have anyone do so on his behalf). I call such a person a "non-declarer".
28. It would have been possible for Unite to arrange for every potential insured to be asked if he was a Member. But that is not what happened and nothing in the Agreements provided that it should. If the policy was purchased on a comparison website it would have been impossible to discover that the purchaser was a Member.

The parties' submissions on the judge's construction

29. Both Unite and LV submit that the judge was in error in adopting the construction that he did, for which neither of them had argued. It is, they submit, unworkable. In order to determine, in the case of a non-declarer, whether or not the marketing of the scheme products was an effective cause of his purchase it would be necessary to conduct a potentially difficult analysis of the cause(s) of his behaviour in what was likely to be an evidential vacuum or, at any rate, in circumstances where the necessary evidence was hard to come by.
30. Thus it would, or might, be relevant to know, inter alia, (i) whether the non-declarer was aware of the dedicated channels; (ii) if so, why he had not used one; (iii) what marketing material directed at (a) T & G/Amicus/Unite members and (b) the general public he had seen; (iv) what was the influence on his thinking of each of those; (v) what was the reason he chose LV as his insurance provider; and (vi) why he did not mention that he was a Member. As to the latter, LV submits, with some force, that, if the purchaser of a product never declared his membership the likelihood that he was influenced by the halo effect is reduced.
31. There would, also, be great difficulties in verification. The information that LV was given comprised the names and addresses of members; and it could check whether a purchaser of insurance was on that list. But the lists were only provided periodically. So a new Member, of whom there were about 70,000 for Unite every year, or a fairly new member, might well not be on it. None of the Unions produced a list of dependants, so that there was no way of checking whether a non-declarer was a dependant.
32. Further, in the case of Amicus the membership information supplied to LV did not include in the list of members those who had not consented to being approached by third parties. So it would not be possible in their case to verify union membership, let alone dependency.
33. Under clause 6 and Schedule 2 of the Agreements LV was bound to provide T & G/Amicus with management information in respect of its customers and its performance of the Services including the number of enquiries and closings for each product/service. Insofar as verification was impossible this obligation could not be fulfilled.

Conclusion on the judge's construction

34. I agree that the judge's construction is in substantial respects unworkable and cannot be supported. It is, of course, possible for the parties to reach an agreement that is unworkable. But a construction which has that result is unlikely to be what the parties meant their words to mean. The judge took the view that, when the Agreements were made, the likelihood was that there were going to be relatively few sales to union members other than through dedicated channels, and that such difficulties as there might be in deciding whether there was a causal connection between LV's marketing to the Members and the product purchased could not imbue the phrase "earned in respect of the Services" with a meaning that it could not reasonably bear.
35. I am of a different opinion for two reasons. First, as will become apparent, there is, in my view, a meaning which the words of the commission clauses reasonably bear which does not involve any element of unworkability. Second, although general retail sales were not that upon which LV focused in 2005 or 2006 they were in existence, so that the workability of the Agreement in relation to purchasers who bought other than through dedicated channels, was a relevant consideration, particularly because it was foreseeable that over a five year term (or longer) LV might, as in the event it did, shift its focus more towards retail sales. Further the fact that relatively few Members would have been thought likely to purchase insurance otherwise than via the dedicated channels suggests that it was not such purchasers that the Agreements had in mind.

Unite's submissions

36. Mr Colin Wynter, QC, on behalf of Unite submits that, if the judge's construction is discarded, the answer is clear. The Agreements do not refer to any discount. They do not speak of scheme products. That is an expression used by LV (but not the parties in their Agreements) to characterise the insurance which they say alone attracts commission. Taking the words of the Agreements in their natural and ordinary meaning, and without introducing qualifications which the parties did not include, they provide - by clause 9.1 - that LV will pay a share of the Annual Premium (i.e. the sum paid by a Member in respect of a relevant product as set out in Schedule 1) earned in respect of the Services during the period of the Agreement. Schedule 1 refers to various insurance products, e.g. home and motor insurance, but makes no reference to discounts. It follows that LV is bound to pay commission on any insurance product (whether discounted or not) sold to a Member. Commission is not limited to scheme products.
37. Mr Wynter accepts that, if that construction be right, the words "in respect of the Services" are unnecessary. If they were not there Unite would still be entitled to commission by way of a share of the premium on all products sold to Members. That is because the definition of Annual Premium specifies that the sum paid in respect of a relevant product is the thing in which Unite is to share. But there is, he submits, no difficulty in treating the words as a descriptive phrase, which adds nothing. The judge regarded those words as importing the requirement (if commission was to be earned) of a causal connection between the Services and the marketing. But there is no need to treat the words as having that connotation.
38. A key to the interpretation of the Agreements is that, under them, LV was going to receive the very valuable benefit of exclusive access to the Union's database – marketing gold dust, as Mr Wynter put it. That would enable LV (a) to make contact with most Members; and (b) to enjoy the Union's seal of approval, the existence of which would stand LV in good stead with Members (the "halo effect") and thereby increase the sale of LV's products. Since, when the Agreements were made, LV's focus was on the affinity schemes, and not on sales to the general public, there would be nothing surprising or unreasonable in an agreement by which, in return for the benefit of exclusive access conferred by the Unions, the Unions would obtain commission in respect of any products (not just scheme products) sold to Members.

Discussion

39. These submissions were powerfully made; but I cannot accept them for the following reasons. The Agreements must be construed in the light of, and by reference to, the circumstances in which they were made. When they were made the parties were well aware that there was an existing affinity scheme under which insurance products were provided to members at a discount and the Unions received a commission on them. Their purpose was to provide terms for the continuance of the relationship between the unions and LV in relation to the operation of those schemes and what each of the parties was to contribute to the other in respect of them and to promote the take up of the scheme.
40. That that is so is confirmed by Recital A which records that LV wished to provide "certain insurance… products and services …to…[T & G/Amicus Members] ...on terms as may from time to time be agreed between T & G/Amicus and Liverpool and Victoria and to market and publicise the same to [T & G/Amicus Members]". In context the reference to "certain insurance products ... on terms as may be agreed" is a reference to the scheme products then in existence, the provision of which was to continue, and not to any product offered to the general public. In relation to the latter products T & G would have no role to play by way of agreeing terms.
41. We were told that there was no evidence before the judge of discussions between the Unions and LV about the level of discount; but, in circumstances where each party knew that there were discounts, the existing discounts must be taken to have been agreed, and subject to agreed variation thereafter.
42. Such a conclusion tallies with the wording of clause 3 which appoints LV to provide the Services to Members. That is entirely congruent with the establishment or continuance of an affinity scheme. Contrariwise it would have been unnecessary for T & G or Amicus to appoint LV to provide to their Members the marketing which LV was addressing to the general public in respect of products which were open to all; and very odd for LV to accept any restriction on how it should market such products to T & G/Amicus/Unite's members.
43. It also tallies with clause 7, headed "Relationship Management" which provides that the Liverpool Victoria Affinity Relations Group Manager will carry out liaison meetings with the person at T & G/Amicus nominated as the primary contact; and that they will review and authorise the Annual Marketing Plan prepared by LV which by schedule 3 was, in the case of T & G, to include a minimum of 6 LV product mailings per year; and, in the case of Amicus was to include product mailings as well as other specified promotional activities.
44. There was some debate before the judge and us as to whether "Services" as defined included the sale or provision of products. Mr Wynter submitted to the judge that they did. The judge agreed - but not for the reasons which Mr Wynter had submitted.
45. What the judge said was this:

"31 Mr. Wynter submitted that "the Services" involved selling insurance products to union members, advising union members in relation to those products and marketing the products to union members. He relied not so much upon the definition of "the Services" in clause 3.1, which does not specifically mention the selling of products, but upon the recital to the agreement, which specifically mentions the provision of insurance products to union members. Whilst the definition of "the Services" in clause 3 does not specifically mention the selling of products it is implicit in the definition as a whole that selling must be contemplated. That is because the definition also includes a claims handling and settlement service which necessarily assumes a prior sale; see clause 3.1.2. In addition, the definition includes the placing of Relevant Business (defined as the provision of the services set out in clauses 3.1.1, 3.1.2 and 3.1.4) in the insurance market. That must also necessarily assume the selling of a policy; see clause 3.1.3. I therefore accept counsel's submission, not by reference to the preamble, but by reference to the definition of "the Services."

46. The problem arises because, although Recital (A) refers to the provision of "certain insurance ... products … as set out in Clause 3 ("the Services")" the Services as defined in clause 3 do not include the provision of insurance products. It might be possible to interpret "marketing" in clause 3 as including the sale of products but that does not fit well with the fact (a) that marketing is usually regarded as distinct from selling; and (b) Recital A distinguishes between the provision of products and the marketing of them.
47. I also have some difficulty with the judge's analysis. It is true that a claims handling and settlement service necessarily assumes that insurance has been sold; but that sale does not have to have been by LV. Further the placing of Relevant Business appears, so far as relevant, to consist of the placing of insurance by LV with someone other than LV.
48. In the end, however, this is, in my view, a barren controversy. The share which Unite earns under clause 9.1 is a share of the sum paid by the Member by way of premium. The critical question is as to the type of insurance product the sale or marketing of which was governed by the Agreements. The answer, in my view, is that the Agreements relate to scheme products. That being so, the Commission earned by LV could only come from sales of scheme products.
49. If the relevant Service is the sale of the product, the premium will necessarily have been earned in respect of that Service (i.e. the sale) because the premium is payable upon sale. If, as I incline to think, the relevant Service is the marketing, the premium will still have been earned in respect of the marketing of the scheme product (since the marketing will have been an effective cause of the sale, which alone gives rise to the premium in which Unite will share). I would regard that as being the case even if the Member does not use one of the dedicated channels, and, at the last moment, reveals that he is a Member and asks (or is told) that in that case he can have a discount. Even then, in effect, the scheme product is being marketed to him as something that he should buy precisely because he will get a discount and the marketing will have been successful once the purchase is made.
50. Such a conclusion links the entitlement to commission to cases where the aim of the affinity schemes – to promote the sale of scheme products in return for the efforts spent in marketing them – has been achieved. It involves no unworkability. It also avoids the incidence of situations in which Unite would get commission when there was no real connection between the marketing of the schemes and the ultimate purchase.
51. In the case of T & G "Excluded Members" were defined as "any T & G Member whom the T & G notifies to Liverpool Victoria in writing as being data subjects [sic] whose data may not be processed by Liverpool Victoria". By clause 3.8.1 of the T & G Agreement LV was bound to ensure that any T & G Excluded Members would not be solicited for future marketing activity specifically in connection with the Agreements. If Unite's construction be correct, Unite would be entitled to receive commission on undiscounted policies purchased by Excluded Members, recently joined union members, and dependants, who had not received scheme marketing material addressed to themselves and who may well not have seen any such material as was circulated more generally e.g. in union magazines, inserts into welcome packs to new members and marketing at conferences. Unite would also receive commission on products which Members had purchased under an LV affinity scheme entered into with a union other than Unite (or T & G and Amicus), of which they were also members.
52. Unite's construction would also have the somewhat curious result that, in respect of a Member who has not, in the event, been enticed to purchase a policy under the affinity scheme, Unite will receive a commission on the premium which (since the latter will not be discounted) will be larger than it would receive if the Member had purchased a policy under the affinity scheme – and in circumstances where the Member will have received no discount himself.
53. I also derive some support for the conclusion that I have reached from the fact that if, as Unite submits, the effect of the Agreements is that, in return for access to Members, LV was to pay commission on any policy of the type specified in Schedule 1 purchased by a Member, it would have been relatively easy to make that wholly clear; and there would have been no need for a recital such as Recital (A) or phraseology such as that used in clause 3.1.

The counterclaim

54. The judge held that LV was entitled to terminate the Agreements when it did and there is no appeal from that finding. In those circumstances LV was entitled to a refund of the advance payment of £ 1.65 million paid to T & G under the T & G Agreement less the commissions earned. As at 18 September 2012 the amount required to be paid was £ 140,067.70.
55. The judge dismissed the claim; made no order on the counterclaim and ordered that Unite's application for an account and for payment upon the taking of such an account be adjourned with liberty to all parties to apply. He did so on the basis that, if the Agreements bore the meaning that he ascribed to them it was possible that further sums were due and owing to Unite by way of commission which would reduce the amount (if any) payable on the counterclaim.
56. Both parties took issue with the appropriateness, if the judge's construction was correct, of the form of order that the judge made. In the light of what I have decided, and if my brethren agree, it is not necessary to consider that question.
57. I did not understand there to be any dispute in relation to the figure of
    £ 140,067.70; nor any suggestion that, if the proper construction of the Agreements was the one contended for by LV, there was some amount outstanding by way of commission which would affect that figure.
58. I would, therefore, allow the appeal and set aside paragraphs 1 - 5 of the judge's order. I would then order (i) that the claim be dismissed; (ii) that there be judgment in favour of the defendants on the counterclaim in the sum of
    £ 140,067.70 together with interest as from 1 November 2012 until the date of the order at a rate to be determined. I would declare that:

"On its true and proper construction, clause 9.1 of the T&G Agreement, which provided that "Liverpool Victoria will pay to T&G a share of the Annual Premium, Loan New Business, and Net Retained Initial Commission earned by Liverpool Victoria in respect of the Services during the period of this Agreement as set out in Schedule 1", required LV to pay such share to T&G, and subsequently Unite, when (and only when) such Annual Premium, Loan New Business, and Net Retained Initial Commission was earned on the sale of specific discounted products made available and marketed to union members and dependants under the affinity scheme operated by LV under the T&G Agreement."

and

"On its true and proper construction, clause 10.1 of the Amicus Agreement, which provided that "Liverpool Victoria will pay to Amicus a share of the Annual Premium, Annual Premium Content and Net Retained Initial Commission earned by Liverpool Victoria in respect of the Services during the period of this Agreement as set out in Schedule 1", required LV to pay such share to Amicus, and subsequently Unite, when (and only when) such Annual Premium, Annual Premium Content, and Net Retained Initial Commission was earned on the sale of specific discounted products made available and marketed to union members and dependants under the affinity scheme operated by LV under the Amicus Agreement."

Lord Justice Briggs:

59. I agree.

Lord Justice Jackson:

60. I agree.