England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/02/2008

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.:

Introduction

1. The defendant, Southend United Football Club Ltd. ("the Club"), carries on business as the operator of Southend United Football Club. The first team of the Club ("the Team") presently plays in Football League One. The home ground ("the Ground") of the Team is at Roots Hall in Southend. As I understand it, there are plans to move from that ground to a new ground at Fossetts Farm in Shoeburyness. However, it seems that it is unlikely that any move will take place before 2010.
2. The claimant, Seatbooker Sales Ltd. ("Seatbooker"), carried on business as a provider of sports and entertainment ticket reservation systems. It seems that it is in fact insolvent, and may have ceased to trade. However, during its active life what Seatbooker did was to provide software to customers by means of which customers of its customers were able to book seats for events over the internet.
3. As I understand it, the capacity of the Ground, excluding seats with restricted views and seating, is 10,807. There are about 600 seats with restricted views. It appears that 23 home matches are played at the Ground each year in whatever division of the Football League the Team is for the time being a member. In addition to these 23 matches, which I shall call in this judgment "League Matches", there may be additional home matches, depending upon whether the Team is playing in one of a number of Cup competitions and what success it has achieved in such competitions. In this judgment I shall refer to home matches in addition to League Matches as "Cup Matches", and to League Matches and Cup Matches collectively as "Home Matches".
4. When there is a Home Match, supporters of the visiting team are allocated an "away" end, in which there is a capacity of 2,056. As I understand it, the sale of tickets for the "away" end at a Home Match is a matter for the visiting team. The tickets are not sold by the Club. There is thus a capacity of 8,751 ordinary seats for occupation by supporters of the Club. Of that total a quantity of seats are assigned to holders of season tickets. It seems that the holder of a season ticket is entitled, by virtue of holding such ticket, to attend all League Matches, but not Cup Matches. In the football season 2005 – 2006 there were 2,939 season ticket holders. That number increased to 5,854 in the football season 2006 – 2007, but fell back to 4,806 in the current season. For each Home Match there is ordinarily available for sale as what are called "match day tickets" the number of seats which is the difference between 8,751 and the then current number of season ticket holders. As I understand it, seats with restricted views or seating are not offered for sale unless all of the other available seats at the Ground have been sold. At present the available number of match day tickets is consequently 3,945. In this judgment I shall refer to the number of tickets available for sale as match day tickets from time to time as "Available Tickets".
5. There are various methods by which Available Tickets may be sold. They could be purchased from a box office at the Ground, either in advance or on the day of the relevant match. They could be bought over the telephone from the Club. However, the method with which this action is concerned is purchase over the internet.
6. The football season, it appears, begins at about the beginning of August in each year and continues until about the beginning of the following May. As I understand it, the sale of season tickets takes place essentially between the end of one season, in May, and the commencement of the next season, in August.
7. The Club first became involved in offering the facility of purchasing Available Tickets over the internet in 2002. By an agreement ("the DF Agreement") in writing signed by Mr. Geoffrey King, Deputy Chairman, on behalf of the Club, on 8 January 2002 the Club retained a company called Data Factors Ltd. ("Data Factors") to provide a number of services described in section 11 of the DF Agreement, but which together included affording potential purchasers of Available Tickets the opportunity of buying over the internet.
8. Clause 1 of the DF Agreement was in these terms:-

"1. GENERAL

1.1 DFL agrees:

1.1.1 to supply the Customer with the Service described in section 11 for the Minimum Duration;

1.1.2 to furnish the Customer with a non-exclusive, non-transferable license to use the Service upon the terms contained in section 9 below: and

1.2 The Customer agrees:

1.2.1 to be bound by the terms and conditions of this Agreement;

1.2.2 to pay the Initial Fee as defined in section 10;

1.2.3 to pay the Service Fee and Internet Ticket Sales Fee for the Minimum Duration as defined in section 10"

9. The various definitions contained in clause 1 of the DF Agreement were defined in clause 10 of the DF Agreement as follows:-

"The Initial Fee:- £1,000 plus VAT for implementation of Internet Ticketing

The Service Fee:- £499 plus VAT per month

Internet Ticket Sales Fee:- 10% of each ticket sold on the Internet

The Minimum Duration:- Three years from the date of this Agreement or the date of first live usage of the Service whichever is earlier. "

10. Clause 6 of the DF Agreement made provision for the termination of the agreement in various events. So far as is presently material, clause 6 was in these terms:-

"Notwithstanding any provisions herein contained, this Agreement may be terminated forthwith by either party by notice in writing from the party not at fault if any of the following events shall occur:-

…

6.3. if the other party shall at any time be in default under this Agreement and shall fail to remedy such default within 30 days from receipt of notice in writing from the first party specifying such default;.

…

6.6 Notwithstanding sections 6.1 to 6.5 above, this Agreement shall continue for the Minimum Duration and thereafter automatically renew for a new duration of one year until or unless the party who wishes not to renew this Agreement provides to the other party a minimum of three months notice in writing"

11. The effect of the relevant provisions of the DF Agreement as to termination was thus that the agreement was terminable by three months notice to expire on the third anniversary of the agreement or any subsequent anniversary.
12. Under the DF Agreement the collection of sums due for Available Tickets sold over the internet was a matter for the Club. Data Factors itself had no contact with purchasers of Available Tickets. As between the Club and Data Factors the obligation to pay the Internet Ticket Sales Fee rested on the Club.
13. The individuals behind Data Factors were a family called Bernstein. Data Factors merged with a company called Seatbooker (UK) Ltd. ("the Original Seatbooker") in about May 2002. The Original Seatbooker was incorporated on 23 January 2001. The individual behind it was Mr. Philip Baldwin. The Original Seatbooker was struck off the register of companies on 14 March 2006 and dissolved on 21 March 2006.
14. Following the merger of Data Factors and the Original Seatbooker Mr. Pat Bernstein wrote to Mr. King a letter dated 24 May 2002 which included this paragraph:-

"As the final stage of the merger, we are adopting consistent branding across all operational areas, geographical locations and product groups. To reflect the increased breadth of our business, we have adopted the name SeatBooker for both products and operations. As a result, all operating contracts are being transferred to SeatBooker (UK) Ltd. Neither the service nor the people change."

15. That notification seems to have been treated on both sides as a notification of an assignment of the benefit of the DF Agreement by Data Factors to the Original Seatbooker. Thereafter, so it appears, the Original Seatbooker performed the obligations of Data Factors under the DF Agreement.
16. By an e-mail dated 8 October 2002 to Mr. King Mr. Clyde Bernstein, acting on behalf of the Original Seatbooker, proposed a reduction in the Internet Ticket Sales Fee payable under the DF Agreement to 8%. That proposal was accepted and was the rate of commission adopted thereafter.
17. Seatbooker was incorporated on 7 January 2004. It appears that a reason, at any rate, for the incorporation of Seatbooker was that the Original Seatbooker had not prospered financially and was not able to obtain from a bank a merchanting facility, that is to say an account into which payments made by customers by credit card could be deposited. Seatbooker, as a new company, was able to obtain such a facility from HSBC Bank plc ("HSBC") in consideration of provision of a bond in the sum of £50,000 from Mr. Meirion Jenkins. Mr. Jenkins had become involved in the Original Seatbooker in about October 2003. He was instrumental in the incorporation of Seatbooker and became a director of that company. The reason for wanting a merchanting facility was so that the purchasers of Available Tickets, and other tickets offered through Seatbooker, over the internet could pay into the merchanting account, to which I shall refer in this judgment as "the HSBC Account". The benefit of that to Seatbooker was that it would be the initial recipient of sums paid for tickets, and so would be paid sooner and more certainly than under an arrangement such as the DF Agreement the commissions due to it. Under the DF Agreement the original recipient of payment for Available Tickets sold over the internet was the Club, which was then in turn supposed to pay the commissions due, by this stage, to the Original Seatbooker.
18. Mr. Jenkins met Mr. King at the Great Eastern Hotel, Liverpool Street, London on 25 May 2004. What was said at this meeting was disputed and I shall return to the accounts of Mr. Jenkins and Mr. King concerning it.
19. Following that meeting Mr. Jenkins caused to be sent to Mr. King a document entitled "Software Sale & Licence Agreement" ("the SSLA"). A version of the SSLA was sent to Mr. King on 27 May 2004 by Samantha Joshi, company secretary, and administrator, of the Original Seatbooker, by facsimile transmission. Mr. Jenkins sent an e-mail dated 28 May 2004 to Mr. King to which, from the contents, it seems he had intended that a version of the SSLA should be attached. However, it appears that the intended attachment was not sent. Mr. King signed the SSLA sent to him by Samantha Joshi and returned it to her by facsimile transmission on 28 May 2004. Mr. Jenkins then signed the SSLA and sent a copy by post to Mr. King under cover of a letter dated 8 June 2004.
20. Mr. King wrote a letter dated 7 September 2005 to Seatbooker which was in the following terms:-

"RE: Seatbooker Sales Limited Service Agreement

In accordance with Clause 6.3 of the Agreement I write to give you thirty days notice under that clause of the termination of the agreement between Southend United Football Club and Seatbooker Sales Limited."

21. The SSLA did not contain a clause 6.3. The DF Agreement did contain a clause 6.3 in the terms which I have set out.
22. Mr. King's letter of 7 September 2005 did not specify any alleged default or require that any such default be remedied within 30 days.
23. Seatbooker consulted its solicitors, Messrs. Field Fisher Waterhouse ("FFW"), following receipt of Mr. King's letter dated 7 September 2005. FFW responded to that letter in a letter dated 5 October 2005, pointing out that it did not amount to a valid notice. Prior to that FFW had written to the Club a letter dated 27 September 2005, which was in these terms:-

"We act for Seatbooker Sales Limited, with whom you entered into a Software Sale & Licence Agreement ("the Agreement") on 24 May 2004.

Under paragraph 16 of the Agreement you are required "to ensure that no tickets will be sold on the Internet via any other company, service or agent". It has come to our client's attention that you are now offering or making arrangements to offer tickets through tickets.com, one of our client's competitors. We enclose a copy press release taken from your own website showing this. Your client is therefore in breach of Paragraph 16 of the Agreement.

On behalf of our client, we give you notice pursuant to Paragraph 10(b) of the Agreement that our client requires you to remedy your breach within 20 days of the date of this notice. In the meantime, our client reserves all of its rights."

24. The Club did not reply to that letter. FFW wrote a further letter dated 24 October 2005. That letter referred to the letter dated 27 September 2005, and included this paragraph:-

"In our letter, we gave you notice on behalf of our client pursuant to paragraph 10(b) of the Agreement that our client required you to remedy your breach within 20 days of the date of that letter. You have not done so. In fact, tickets are available for sale on the Internet through tickets.com via a link from your own website. It is our view that your breach is sufficiently serious that our client is entitled to terminate forthwith pursuant to paragraph 10 of the Agreement. In any event, our client has now given the notice required by paragraph 10(b) of the Agreement and that notice has expired. In the circumstances, you are in repudiatory breach of the Agreement and our client hereby terminates the Agreement."

25. It was not in dispute that, by three agreements each said to have been made as of 1 August 2005, although in fact signed by Mr. King on behalf of the Club on 9 August 2005 and on behalf of Tickets.com Ltd. ("Tickets.com") on 11 August 2005, the Club entered into binding contractual arrangements to obtain a licence to use software provided by Tickets.com for the purpose of selling Available Tickets over the internet. The actual use of that facility seems to have commenced at the end of September 2005.
26. In this action Seatbooker claimed damages from the Club for alleged repudiation of the SSLA. The matters said to amount to the repudiation were the sending by Mr. King of the letter dated 7 September 2005 and the making of the agreements with Tickets.com to which I have referred to use the software of Tickets.com to sell Available Tickets over the internet.
27. The principal defence of the Club to the claims of Seatbooker was that the SSLA was not binding upon it, so that it could not have repudiated it. I shall come to consider in detail the nature of the defence of the Club, but first it is convenient to consider the form and material terms of the SSLA.

The form and material terms of the SSLA

28. The SSLA took the form of a front sheet and three pages of provisions entitled "Seatbooker General Conditions & Licence Agreement No: L/A114" ("the Conditions"). The front sheet was the signature page. At the top of the front sheet were the name "Seatbooker" with a hand, together constituting a logo. There was then a prominent heading, "SOFTWARE SALE & LICENCE AGREEMENT". Below that was a box with three columns. The first column was headed "Agreement No & Date". It was completed to show the number LA114 and the date 26 May 2004. The second column was headed "Customer Name" and was completed with the name of the Club, but without the word "Ltd.". The third column was entitled "Address" and was completed with the address of the Ground. Below the first box were four other boxes. The first of these other boxes also had three columns. The first column was headed "Managed Service" and was completed "Ticket office (hardware as supplied)". The second column was headed "No users", which seems to have been intended as an indication of the number of proposed users, for the number given was "three". The third column was headed "Fee/Qtr" and was completed "£1497 (£499/month)", in other words the monthly rate payable under the DF Agreement as the Service Fee. The third of the five boxes on the front sheet had only two columns, one entitled "Internet Ticketing" and the other entitled "Fee". The columns were completed to show that internet ticketing was to cover "Match tickets" and "Season tickets sale & renewal". The fees were said to be 8% of ticket face value for sale of match tickets and 1% of ticket face value for sale or renewal of season tickets. The rate of fee for sale of Available Tickets was thus the same as that then prevailing under the DF Agreement.
29. The fourth box on the front sheet of the SSLA was immediately above the last box, which was the signature box. It was in bold, large print. What it said was:-

"The Customer hereby contracts to purchase the products and services listed above according to the terms and conditions on the reverse of this page and the general conditions and licence on the second page of this Agreement."

30. The last box on the front sheet had space for "Signed for Customer" and "Signed for Seatbooker", with, below each such space, spaces for the name and position of the signatory.
31. The Conditions were produced in small, but not illegible, print. They were rather densely set out, possibly rather challenging the perseverance of anyone tempted to read the entirety of the Conditions. Moreover, the individual conditions tended to group together somewhat unlikely provisions, such that in order to be able to make a proper assessment of the effect of the SSLA as a whole it was necessary to read the Conditions carefully. For present purposes the following are the most material provisions of the Conditions:-

"1 Introduction

This is an Agreement for the licensing of Seatbooker application software along with the purchase of Seatbooker consulting services and various other associated third party products and services between Seatbooker Sales Ltd. (hereinafter known as Seatbooker) and the Customer referred to on page 1 of this Agreement. In the event of conflict, the order of precedence shall be firstly any attached schedules, secondly the details on the front of page 1, thirdly the conditions on the reverse of page 1 and finally the conditions and licence on this page 2. [There was not in fact a reverse of page 1 and "this page 2" actually ran to three pages] This is not a fixed price contract.

…

It is a fundamental condition of this agreement that neither party has relied on any representations, (other than those specifically stated or referenced in this agreement), from the other in relation to entering into this contract and insofar as any representations (other than fraudulent misrepresentations) have been made then the Customer has waived any rights in respect of these representations.

In signing this Agreement, the Customer acknowledges that Seatbooker's prices are calculated on the assumption that any limitations as to liability contained in this Agreement are reasonable and are accepted in full by the Customer.

2 Term

This Agreement is effective from the date of signing the front page. This Agreement and any License granted may be terminated by the Licensor if the Licensee fails to comply with any of the terms and conditions hereof. Subject to the aforesaid and to the provision of Clause 10 hereof the License granted herein with regard to any Licensed Program shall remain in force until the termination of this Agreement or the Licensee discontinues the use of the Licensed Program on the Designated Equipment. [The term "Licensed Program" was defined for the purposes of the Conditions, but the expressions "Licensor" and Licensee" were not.]

…

10 Termination

The Licensor shall have the right to terminate this Agreement summarily by notice in writing (without prejudice to any remedy it might have against the Licensee for breach of [sic] non-performance of any provision of this Agreement) if the Licensee:

(a) …

(b) Has committed a major breach of its obligation under this Agreement including but not limited to failure to pay any sums which may be due from the Licensee hereunder and in case of a breach capable of remedy has failed to remedy such breach within twenty (20) days of being given notice requiring it so to do;

…

14 General

(a) Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes all the parties [sic] relating to the subject matter of this Agreement except as expressly set forth herein. Any and all modifications of this Agreement shall be made by mutual agreement of the parties and must be in writing signed by a director of Seatbooker. This Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived in whole or in part except by such written agreement of the parties. …

15 Seatbooker Managed Service

Where a Managed Service fee is shown overleaf, Seatbooker will provide a managed service to operate the system on behalf of the Customer. Under the Managed Service, Seatbooker will provide the Customer access to the Seatbooker suite of programs operated by Seatbooker on a centrally managed server, and, where indicated in this Agreement, on site hardware. The Managed Service is provided subject to the conditions contained in this Agreement and in particular in this clause 15, with the provisions of Clause 15 taking precedence in the event of conflict with any other part of this Agreement.

Seatbooker's responsibilities under the managed service are: To provide the Managed Service in accordance with the current product description: To ensure that the telephone support line is manned by suitably qualified persons: To maintain a log of all calls received, the nature of the problem and how it is resolved and to provide copies to the Customer upon request: To support and maintain its then current release – support and maintenance of earlier releases shall be at Seatbooker's discretion and may involve additional charges: To facilitate daily back-up copies of the Customer's data.

The Customer's responsibilities under the managed service are: To ensure that its staff are trained and proficient in use of the software: to report any malfunction of the software to Seatbooker at the earliest possible opportunity, specifying the nature of the difficulty and co-operate with Seatbooker in investigating the fault and its reproducibiility [sic]: To report any relocation of hardware provided by Seatbooker as part of the managed service: To follow Seatbooker's reasonable directions for the operation of the software and equipment: To return the equipment to Seatbooker upon request or in the event of termination of this Agreement.

Items excluded from the Managed Service: Costs incurred as a result of changes in the location or use of Seatbooker supplied hardware as part of the Managed Service: All site preparation costs, consumables, electrical power, network cabling, communications costs other than between the Customer and the Seatbooker central server, telephone charges and similar, costs associated with credit card transactions.

Seatbooker shall invoice the Customer for the Managed Service Fee. The first three quarters are payable on signature of this Agreement and thereafter payable by standing order quarterly in advance from the first day of the second quarter of the Agreement. The Managed Service Fee shall be adjusted on each anniversary of this agreement so that the proportion which the Fee payable after such anniversary bears to the Fee payable before such anniversary is the same as the proportion which the retail price index for the month immediately preceding such anniversary bears to the retail price index for the same month of the previous year. The Fee payable after the anniversary shall be the adjusted amount. This Agreement for Managed Service comes into force on the date of signature by both parties and continues in force, until terminated by twelve months prior written notice which notice may be given at any time after the fourth anniversary.

16 Seatbooker Internet Ticketing

Where a Fee is shown for Internet Ticketing overleaf, Seatbooker will provide an Internet Ticketing Service, operated on behalf of the Customer. Under the Internet Ticketing Service, Seatbooker will provide the Customer and the Customer's end users access to the Seatbooker suite of programs operated by Seatbooker on a centrally managed server – the Site. The Internet Ticketing Service is provided subject to the conditions contained in this Agreement and in particular in this clause 16, with the provisions of Clause 16 taking precedence in the event of conflict with any other part of this Agreement.

Seatbooker's responsibilities under the Internet Ticketing Service are: To provide the Seatbooker Internet Ticketing Service in accordance with the current product description: To prepare the stadium layout in readiness for implementation on the internet no later than the agreed implementation date subject to the Customer promptly following Seatbooker's reasonable instructions and requests for information: To ensure that the telephone support line is manned by suitably qualified persons: To maintain a log of all calls received, the nature of the problem and how it is resolved and to provide copies to the Customer on request: To support and maintain its then current release. Support and maintenance of earlier releases shall be at Seatbooker's discretion and may involve additional charges: To facilitate daily back-up copies of the data held on the Seatbooker server.

The Customer's responsibilities under the Internet Ticketing Service are: To report any malfunction of the software to Seatbooker at the earliest possible opportunity, specifying the nature of the difficulty and co-operate with Seatbooker in investigating the fault and its reproduciility [sic]: To ensure that no tickets will be sold on the Internet via any other company, service or agent: To follow Seatbooker's reasonable directions for the operation of the software and service and to provide a prompt response to Seatbooker's requests for information: To promptly verify and report any errors, and in any event within 24 hours, in information set up for use on the site by Seatbooker. In all circumstances, where Seatbooker has introduced an error in the site creation or amendment, the Customer's sole and exclusive remedy shall be to have Seatbooker make changes to the Site so as to correct the error. To create appropriate procedures to protect the confidentiality of passwords and operator ID's [sic] and other information handled or transmitted by the service, to ensure appropriate levels of password are set and regularly changed, to ensure that all operators adhere to these procedures and to ensure that Seatbooker is promptly notified of the need to remove access from individuals no longer authorised to access the service: Dealing with enquiries from and all communications with end users who have purchased or wish to purchase tickets using the service including all matters ancillary thereto and setting up events including start times, venues, on sale and closing dates and times, prices etc: Providing appropriate ticket distribution and collection facilities, resources and staff and to maintain procedures for confirming the identity of purchasers and the elimination of undesirable activities: Providing the terms and conditions for matters relating to the purchase of tickets and the venue but not the conditions for purchases from the Seatbooker site.

Items excluded from the Internet Ticketing Service: Costs associated with the Customer's connection to the internet and any costs associated with ticket printing and distribution: All consumables, physical site preparation, electrical power, network cabling, communications costs, ticket printing costs, telephone charges and similar, costs associated with credit card and bank transactions including charge backs whether or not the validity of such charge back has been substantiated.

Seatbooker will collect payment for the ticket from the Customer's end user and remit the net amount due to the Customer within 30 days of the ticket sale. This Agreement for the Internet Ticketing Service comes into force on the date of signature by both parties and continues in force, until terminated by twelve months prior written notice which notice may be given at any time after the fourth anniversary.

17 Software Support and Maintenance

Where Seatbooker is contracted to provide software support and maintenance, including under the Managed Service and Internet Ticketing Service for which the Fees are shown overleaf include support and maintenance, then such support shall comprise the following

Advice by telephone or modem between 0900 and 1700 Monday to Friday (excluding bank holidays) on the use of the Licensed Program.

The correction of malfunctions in the Licensed Program.

…"

32. Seatbooker's case was that the effect of clauses 15 and 16 of the SSLA, in the light of signature of the SSLA by Mr. Jenkins on behalf of Seatbooker on 8 June 2004, was that the SSLA could not lawfully be terminated by the Club until 8 June 2009. The engagement by the Club of Tickets.com, it was contended, amounted to a breach of the requirement in clause 16 that the Club "ensure that no tickets will be sold on the Internet via any other company, service or agent:". That breach was treated as capable of remedy and a notice was given by FFW in its letter dated 27 September 2005 requiring remedy within twenty days, in accordance with clause 10(b) of the SSLA. That notice was ignored, and so Seatbooker was entitled to terminate the SSLA by the letter dated 24 October 2005 written on its behalf by FFW. In addition, it was said, the terms of the letter dated 7 September 2005 written by the Club amounted to a repudiation of the SSLA by the Club, which repudiation Seatbooker accepted by the letter dated 24 October 2005.

The defences of the Club

33. The principal defence of the Club, as I have mentioned, was that the SSLA was not binding upon it. The way in which that case was pleaded on behalf of the Club in the Amended Defence and Counterclaim was:-

"10. On 25 May2004, Mr King met Mr Jenkins at the latter's request at the Great Eastern Hotel, Liverpool Street, London EC2. It was SUFC's [i.e. the defendant's] understanding that Mr Meirion Jenkins was a director of Seatbooker UK at that time. Mr Jenkins was a director of Seatbooker Sales Limited from 7 January 2004 to 26 November 2004. Mr Jenkins wished to discuss his concerns about the corporate governance of Seatbooker UK, and indicated that he intended to leave Seatbooker. Mr King took the opportunity to inform Mr Jenkins of SUFC's future ticketing needs and to inquire whether these could be met by Seatbooker UK's systems.

11. Mr King also mentioned to Mr Jenkins restrictions then being imposed upon SUFC by Lloyds Cardnet in respect of income from sales of season tickets, which was not being released in one lump sum to the club, but was being paid out by monthly instalments of 1/23^rd. Mr Jenkins therefore offered SUFC the opportunity to use instead Seatbooker UK's credit and debit card merchant number and account for internet sales of season tickets, in addition to the existing service under the DFL Contract [i.e. the DF Agreement]. It was orally agreed between Mr King and Mr Jenkins that where sales of season tickets were effected over the internet by Seatbooker UK, it would charge SUFC 1% of the season ticket price, which sum would be payable by SUFC, not the purchaser ('the Oral Variation'). Mr King and Mr Jenkins agreed that the 8% charge in respect of sales of match day tickets would continue.

12. Mr Jenkins told Mr King that they would need "to add that [i.e. the new service] to the existing contract". He did not suggest and it was never agreed, that a new contract would be entered into between the parties supplanting the DFL Contract, nor that it would be supplemented or varied other than in respect of the addition of the term set out in paragraph 11 above. In particular, it was never suggested to Mr King by Mr Jenkins that:

(a) the DFL Contract would be determined forthwith and superceded [sic] by a completely new contract;

(b) the identity of the party with which SUFC was contracting would change;

(c) the minimum term of the contract would be extended; or

(d) that SUFC would lose its existing express contractual right to determine the contract for breach by the Licensor.

13. On 27 May 2004, Mr King received by fax from one Sam Joshi a document headed 'Software Sale & Licence Agreement'. The fax cover sheet used by Ms Joshi was headed 'Seatbooker' and bore Seatbooker UK's company number. The first page of the document was headed simply 'Seatbooker' and included reference to a Managed Service, at £499 per month, Internet ticketing for match sales at 8% ticket face value and season tickets 1% ticket face value. It referred to conditions on the reverse of the page and upon the second page of the document.

14. Mr King spoke to Ms Joshi and the substance of their conversation is set out on the cover sheet of the fax described in paragraph 16 below.

15. Further, by an email sent at 15:34 on 28 May 2004, from Mr Jenkins to Mr King and headed 'Our meeting 25.05.04: internet season ticketing, loyalty scheme and CRM', Mr Jenkins wrote: 'As discussed, I attach an order for you to sign to include internet season tickets with your existing match day internet and managed service facilities. I would be grateful if you could print and sign 2 copies and post both back to me. …I would also be grateful if you could fax a signed front sheet back to me to save time …". However, to the best of SUFC's knowledge and belief, no document was attached to that email.

16. Mr King signed a copy of the front sheet and faxed it to Ms Joshi at 15.48 on 28 May 2004, under cover of a handwritten fax cover sheet. To the best of SUFC's knowledge and belief the SSLA was signed by Mr Jenkins on or about 8 June 2004.

…

18. The terms of the software sales and licence agreement ('the SSLA') faxed to Mr King by Ms Joshi are significantly different in a number of substantive respects from the terms of the DFL Contract, apart from the term as to season ticket sales. Indeed, the Licensor identified in the SSLA is the Claimant, not Seatbooker UK. The SSLA appears to incorporate the Claimant's standard business terms and conditions. …

19. Mr King did not read the General Conditions of the SSLA prior to signing the front sheet thereof. Instead, he relied upon the Oral Variation and upon the representation made to him by Mr Jenkins that the document was only intended to set out in writing the agreed terms varying the DLF [sic] Contract by adding the new season ticket service to it.

20. Had the Claimant invited SUFC to agree to enter into a contract on the basis of the terms and conditions set out in the SSLA, SUFC would have declined to do so. Further or alternatively, had the Claimant invited SUFC to vary the DLF [sic] Contract by including in it the terms and conditions set out in the SSLA, SUFC would have declined to do so.

21. It is SUFC's primary case that in the light of the said representations made to Mr King by Mr Jenkins, and the terms of the Oral Variation, it was their mutual intention that the only change to the contractual relations between SUFC and Seatbooker UK should be the addition of terms relating to the new season ticket service to the DFL Contract.

22. In the premises, SUFC presumes that the provision by Ms Joshi to Mr King of the draft contract in the form of the SSLA was a mistake, as were Mr King's and Mr Jenkins' signatures of it. In the circumstances, there being a mutual mistake as to the document evidencing the Oral Variation, the SSLA should be (or was liable to be) rectified accordingly.

23. Alternatively, Mr King, but not Mr Jenkins, signed the front sheet of the SSLA under the mistaken belief that it gave effect to the Oral Variation. Mr Jenkins must, however, in all the circumstances, have been aware of Mr King's mistake or become aware of it before he too signed the SSLA on or about 8 June 2004.

24. In the premises, the SSLA was at all material times void, alternatively should be deemed to have been made on the terms of the Oral Variation.

25. Alternatively, Mr Jenkins represented to Mr King at their meeting on 25 May 2004 and/or by his email of 28 May 2004 that the SSLA was no more than 'an order', and it did no more than add the agreed terms relating to the new season ticket service to the DFL Contract.

26. In the circumstances, those representations were untrue, and Mr Jenkins made them negligently, without reasonable grounds for believing them to be true.

27. Mr King relied, as aforesaid, upon those misrepresentations in signing the SSLA on behalf of SUFC (alternatively, he relied upon the first of them in signing the SSLA and upon the misrepresentation in the email as confirming it, at a time when the Claimant had not yet signed the SSLA) on the basis that the SSLA evidenced the Oral Variation. In the premises, the SSLA was void or voidable and the SUFC is (or was) entitled to rescission of the SSLA or to damages in lieu of rescission.

28. SUFC's case is that after May 2004, the DFL Contract continued in effect, as varied by the Oral Variation, alternatively, that such was the contractual position agreed between the parties. At a date unknown to SUFC, Seatbooker UK appears to have assigned its rights and obligations under the DFL Contract as amended to the Claimant, which has since a date unknown to SUFC supplied the services under such contract in place of Seatbooker UK.

…

32. To the extent that the SSLA purported to substitute or vary the DLF [sic] Contract other than as agreed as aforesaid, the Claimant did not give adequate notice to SUFC of the terms of the SSLA. In the premises, SUFC is not bound thereby.

33. Further or alternatively, the terms contained in clauses 2, 7, 9-10, and 12-16 of the SSLA are so unusual, so disadvantageous to SUFC, and so stringent in their nature, that the Claimant was in all the circumstances under a duty specifically to draw them to SUFC's attention. As the Claimant failed to do so, SUFC is not bound thereby."

34. However analysed from a legal point of view, most of the contentions set out in the passage from the Amended Defence and Counterclaim which I have quoted depended upon the facts of the discussion between Mr. Jenkins and Mr. King on 25 May 2004 being as was contended on behalf of the Club.
35. Apart from those contentions on behalf of the Club which depended, essentially, upon what had actually been said as between Mr. Jenkins and Mr. King at their meeting on 25 May 2004, the pleaded case of the Club contained averments that it had been entitled to determine any contract with Seatbooker by reason of breaches of such contract on the part of Seatbooker. One version of this contention was based on the proposition that the relevant contract between the parties was the DF Agreement, but there was also a version based on alleged breach of the SSLA. How these allegations were put was:-

"39. On a number of occasions and for periods of time from May 2004 to about September 2005 onwards, the Claimant (alternatively, Seatbooker UK) failed to supply services satisfactory to SUFC. In particular, sums due to SUFC in respect of sales were paid late; by way of example, sums due for sales made during April 2005 were not paid to SUFC until 2 August 2005. Furthermore, from about August 2004 onwards, the Claimant failed to add the 8% commission to the price charged to purchasers of match day tickets, taking instead only a £1.50 administration fee. Nonetheless, the Claimant (alternatively, Seatbooker UK) continued to deduct sums from monies it received on sales of tickets before accounting to SUFC. …

40. By an email dated 14 June 2005, Mr King required the Claimant to pay forthwith to SUFC sums held by the Claimant for ticket sales which were then properly payable and due to SUFC, pursuant to the pre-existing practice of the parties [alleged at paragraph 29 of the Amended Defence and Counterclaim to be to pay within three days of receipt by Seatbooker] or alternatively, pursuant to clause 16 of the SSLA. Such email specified a default on the part of the Claimant and was a notice of such default within the meaning of clause 6.3 of the DFL Contract. Alternatively, SUFC was entitled to serve such a notice to determine the SSLA (if in force) for such breach, by reason of the matters pleaded in paragraphs 21 – 35 above.

41. In the premises, no payment having been made by the Claimant, the DFL Contract (as varied) was determined 30 days after receipt of that email, that is to say, on 13 July 2005.

…

42. It is further admitted and averred that on 7 September 2005, solicitors acting for SUFC wrote [sic – in fact the intended reference was to Mr. King's letter which I have quoted] to the Claimant again giving notice to terminate under clause 6.3 of the DFL Agreement. In the premises, if the DFL Contract (as varied) had not been determined in July as aforesaid, it was determined 30 days after 7 September 2005, namely on 8 October 2005.

43. Alternatively, if any part of the SSLA was in force and bound SUFC, which is denied as aforesaid, then SUFC was entitled to determine the same for breach, in the light of the Claimant's failure to cure the said breach. SUFC repeats paragraphs 32 to 35 above and avers that any implied exclusion of a right on SUFC's part to determine the agreement for breach would be unenforceable. In the premises, if the SSLA had not been determined in July as aforesaid, it was determined 30 days after 7 September 2005, namely on 8 October 2005. "

The meeting on 25 May 2004

36. Both Mr. Jenkins and Mr. King were called to give oral evidence at the trial.
37. In his witness statement dated January 2007 Mr. Jenkins gave this account of the meeting on 25 May 2004:-

"13. In May 2004, I had another meeting with Geoffrey King of Southend. Mr King had called and left a message that he wanted a meeting. I e-mailed his PA on 13 May offering some dates and after an exchange of e-mails we settled on 25 May 2004. It is my recollection that he asked for the meeting because he had a couple of things to speak about. I do not think (or cannot recall) that he told me in advance of the meeting what it was he wanted to talk about but it suited me as I needed to see him anyway to explain the matters set out above [essentially the role of Seatbooker and the opening of the HSBC Account]. A copy of my e-mail to Mr King's PA dated 13 May 2004 … states "I had a call from Mr King requesting dates for a meeting".

14. The meeting took place on 25 May 2004 at the Great Eastern Hotel at Liverpool Street in London. During the meeting I made some notes … Mr King wanted to talk about the possibility of Southend selling season tickets on the Internet. The existing Internet sales contract with Seatbooker (UK) Limited was simply for the sale of match day tickets. Until now, sales of season tickets had taken place only through Southend's ticket office but the current arrangements between Southend and its credit card company meant that Southend's cashflow was affected and there were some administrative problems. Mr King explained that under Southend's current arrangements it would only receive payments from the credit card company in instalments.

15. Southend's cashflow problem would be solved if its season tickets could be sold using Seatbooker Sales Limited's merchanting facility. The facility had just come into use for Southend in anticipation of the signature of a new contract for match day tickets and it would be sensible for it to be used also for season tickets. The result would be that Southend would receive lump sum payments in respect of season tickets (rather than small monthly instalments) but that it would receive these lump sums net of Seatbooker Sales Limited's fees.

16. I have seen a copy of the Defence and Counterclaim which states that I asked for the meeting on 25 May 2004 "to discuss [my] concerns about the corporate governance of Seatbooker (UK)" and that I "indicated that [I] intended to leave Seatbooker". This is not correct. I attended the meeting at Mr King's request. I had anticipated that he wanted to enter into a contract for additional services and, as a salesman, I had hoped to make a sale. I cannot think of any reason why I would have made the statements attributed to me in the Defence and Counterclaim. No salesman could make comments such as these and then expect to make a sale. We did discuss the structure of the business. I had told him when we had met in November 2003 that there were to be management and structural changes at Seatbooker (UK) Limited. What I told him in May 2004 was therefore by way of an update on a process he was already aware of. I told him that we had incorporated Seatbooker Sales Limited, which had the merchanting facility, and that it was the intention that clubs, including Southend, would sign new contracts with Seatbooker Sales Limited. Following his comments in relation to season tickets, I was pleased to be able to tell him that we could also arrange for Southend to sell season tickets on the Internet using the merchanting facility. We also discussed other concepts such as a loyalty card scheme and a CRM (Customer Relationship Management) system.

17. The matters discussed above, and which resulted in the signature of a new contract, are not consistent with the allegation that I called the meeting simply to criticise the company and say how much I wanted to leave. On the contrary, I attended the meeting hoping to make a sale which would be in the interests of both parties and left the meeting having done so (subject to contract) and having solved a cashflow problem for Southend.

18. When I left the meeting it had been agreed that Southend would sign a new contract with Seatbooker Sales Limited, that Southend would benefit from Seatbooker Sales Limited's merchanting facility, that Seatbooker Sales Limited would additionally make available to Southend a facility for season tickets to be sold over the Internet (with fees payable to Seatbooker Sales Limited of 1% of the face value of each ticket) and that the existing fee scale on match day tickets would be kept at a per cent of face value. I had not taken a draft contract with me to present to Mr King. This was because I did not know until I met him what services he would require and at what price we would agree. Having agreed these points, I would have expected to then need time to prepare the contract. At then [sic] end of the meeting, we agreed that I would prepare the Software Sale & Licence Agreement ("SSLA") and forward it in due course. …

24. The Defence and Counterclaim then alleges that what I had said to Mr King in the meeting on 25 May 2004 was incorrect. The comments attributed to me appear to be that the documentation I would send would only be intended to vary the existing Data Factors Limited contract. In fact, I see that Southend say that an oral contract was entered into on 25 May 2004 to make this variation and that the paperwork simply reflected that. None of this is correct. I made it clear in the meeting on 25 May 2004 that a new contract was required and that it would be entered into between Seatbooker Sales Limited and Southend. I did not enter into an oral variation agreement with Mr King. That would have been completely at odds with my usual practice (which was to contract in writing) and with my having invested time producing suitable Terms and Conditions for Seatbooker Sales Limited. I did not say to Mr King that the SSLA was simply intended to be a variation of the existing Data Factors Limited Agreement. Again, that would have been at odds with all the work I had been doing with Seatbooker Sales Limited to set up the merchanting facility and move clubs onto it. I can therefore be sure that I did not say what I am alleged to have said and that I did not make any misrepresentations to Mr King.

25. Finally, Southend alleges that either Mr King made a mistake, Mr King and I made a mistake, or Mr King, Sam Joshi and I all made mistakes in producing and signing the SSLA. That is wrong. Following my meeting with Mr King, I sent him the SSLA knowing that it was a new contract between Seatbooker Sales Limited and Southend and knowing that Mr King also understood its purpose. Sam Joshi's function is purely administrative and she would simply have sent to Mr King the documentation I asked her to send."

38. Mr. Jenkins was cross-examined closely on his account of the discussion with Mr. King on 25 May 2004. He was firm that a new contract was specifically mentioned and that it was specifically agreed that the sale of Available Tickets over the internet should be undertaken with payment being made through the HSBC Account. He said that the only real debate was about the rate of commission to be paid by the Club in relation to the sale of season tickets over the internet. He agreed that he had said to Mr. King something to the effect that, by use of the HSBC Account, the Club would receive payment of the proceeds of sale of season tickets straightaway. However, there was no more definite mention of the time within which Seatbooker would make payment. Equally there was no discussion of the length of the intended new agreement, although he, Mr. Jenkins, had it in his mind that, in consideration for him agreeing to an attractive rate of commission from the point of view of the Club in relation to the sale of season tickets, the Club would accept without substantial demur the standard terms of business of Seatbooker as contained in the Conditions. Mr. Jenkins described the negotiation in relation to the commission to be paid in respect of the sale of season tickets as tough, but the meeting generally as not contentious. He accepted that, contrary to the pleaded case of Seatbooker that the first use of the HSBC Account for the sale of Available Tickets occurred on about 8 May 2004, in fact it seemed that the HSBC Account was not used for the benefit of the Club until about 3 June 2004, and then was used in connection with the sale of season tickets.
39. Mr. King's account of the meeting on 25 May 2004 was completely different from that of Mr. Jenkins. In his witness statement he said:-

"16. As I recall, Mr Jenkins suggested a meeting, so that he could update me on his progress with dealings at Seatbooker. We met at the Great Eastern Hotel, on 25 May 2004. We spent a lot of time talking about the difficulties he was having bringing Seatbooker into line, and the problems he was having with the directors, who he did not feel recognised the usual standards of corporate governance. There was no question of him mentioning Seatbooker Sales Limited, the Claimant, to me. Nor had I had any other reason to suspect that there was another company involved. The documents we received from Seatbooker from early 2004 and afterwards did undergo a slight change in format, but essentially were headed just "Seatbooker", they did not say "Seatbooker Sales": …

17. Mr Jenkins told me that he intended to leave Seatbooker, because he was unhappy with the way things were moving and did not feel that the directors took much notice of him. We did not talk about much else. I have seen that in paragraph 10 of the Reply and Defence to Counterclaim, the Claimant says that Mr Jenkins was having meetings with Seatbooker's customers around this time to persuade them to execute new contracts with the Claimant. Mr Jenkins had no such meeting with me. As I have explained above, he did not mention the Claimant and he did not ask me to enter into a new agreement with it on SUFC's behalf, nothing at the meeting suggested to me that this was Mr Jenkins' real agenda in meeting with me at that time.

18. Mr Jenkins asked towards the end of our meeting whether there was anything else he (or Seatbooker) could do for SUFC. At that time SUFC was having problems with its merchant facility provider, Lloyds Cardnet. The problem was that when supporters purchased season tickets with a credit card, Lloyds Cardnet would only release the payments to SUFC 1/23 at a time. This was because of a concern they had about the financial state of a number of football clubs, and the risk that if a club became insolvent, the merchant provider would have to reimburse at least a proportion of the season ticket price to the purchaser. A number of clubs had the same problem and I brought the matter up at the quarterly Football League meetings with Tad Detko and Andy Williamson, the Football League's Finance Director and Operations Director. They were aware of the problems we were having. The way we got round it was to explain the situation to fans and ask them to pay by cash or cheque. We had done that for the previous season as well.

19. This was going to be a continuing problem, so when Mr Jenkins asked if there was anything Seatbooker could do to help us, my words were along the lines of "I don't suppose you can help us with this can you?" and explained the situation to him. He said that actually he could, and that SUFC should use Seatbooker's merchant facility. The monies could then be released to SUFC without delay, after the commission had been paid to the credit card company. We did not discuss exactly how rapidly the monies would be paid to us but I assumed it would be three days, which is the standard time for payments to come through a merchant account. I therefore agreed that we would now sell season tickets over the internet through Seatbooker, which would receive 1% commission on sales, to be paid by the Club. No other changes to the contract I had originally negotiated with DataFactors were made, or even discussed at that time, and Seatbooker's 8% commission on match day sales was still going to be paid by the customer. All we discussed, and all that we agreed, was a variation to the agreement I had negotiated carefully with DataFactors, so as to allow for the provision of an extra service. Mr Jenkins said to me something along the lines of "we'll need to add that" (by which he meant the additional service to the existing contract); there was no suggestion that we would enter into a wholly new contract.

…

21. There is a lot of season ticket activity in the period leading up to the start of the season so I wanted to get the new service up and running as soon as possible, to catch those supporters who would only feel able to buy a season ticket by credit card. In terms of new documentation, all I expected to receive was a document showing what Seatbooker would now be doing, and as far as I was concerned that was what was faxed to me by Sam Joshi … The main sheet showed what we had agreed. There would be a managed service fee, and commission on season ticket sales would be 1%, with commission on match day sales at 8%. If we had agreed anything else, I would have expected it to be shown on that page. All I was expecting to see was a record of the new service. There was no need to change any of the other terms of the DataFactors agreement, and I did not agree to any further changes. I did see the document headed Seatbooker General Conditions and Licence but I knew the terms of the DataFactors agreement, which as far as I was concerned remained in full force. No one drew my attention to that document, although I note now that in contrast, when Mr Jenkins was corresponding with Anita Vine about the EPOS system, he specifically referred her to the terms and conditions. The print was so small I could scarcely read it and as Mr Jenkins and I had not discussed any new terms, or an extension of the term of our agreement, I had no reason to believe that it contained a new five year contract or a contract on terms completely different from the agreement with DataFactors.

22. So far as I was concerned, I had no reason to struggle through pages of small print because I knew what had been agreed and it was not that we would sign up to a new contract. I relied upon what I knew had been discussed with Mr Jenkins, which was simply that there would be the specific variation of the existing contract, nothing more. I had no reason to distrust him, or think that he would send me anything other than a document reflecting what had been agreed. I do not know whether the agreement was sent by mistake, or whether the Claimant was negligent in sending something to me which did not reflect our agreement. In addition, Mr Jenkins did not tell me about the existence of Seatbooker Sales Limited, the Claimant, or tell me that we would have to enter into a new agreement with it.

23. If there had been any reference in my meeting with Mr Jenkins to an agreement with a new term, or with different rights of termination, I would have negotiated them and would also have considered taking legal advice. I would certainly not have signed a new five year contract, which is considerably longer than the three year industry standard. I would have waited for the existing one to run out and then re-negotiated. I note at this point that some of the terms of the document which the Claimant refers to as the "SSLA" (Software Sale and Licence Agreement), are so far outside the industry standard that I would be surprised if any club signed up to them. I certainly would not have. …"

40. It was, I think, quite clear, from the copies of contemporaneous documents to which reference was made during the course of the trial, that Mr. King was in error in his recollection that it had been Mr. Jenkins who had suggested the meeting which took place on 25 May 2004. In an e-mail dated 11 May 2004 to Helen Giles, the club and company secretary of the Club, and an assistant to Mr. King, Mr. Jenkins wrote:-

"I had a call from Mr King requesting dates for a meeting. I only have the Southend number and both of you were out today.

Due to holidays and some overseas business trips, it will be difficult to get out to Southend for a while. I am in London however several times over the next few weeks. If Mr King has any trips planned into town, then hopefully we could make an arrangement to meet."

41. That message seems to have prompted Helen Giles to telephone Samantha Joshi, for in an e-mail dated 13 May 2004 to Mr. Jenkins Samantha Joshi said:-

"Please call Helen Giles of Southend to arrange a meeting with Geoffrey King wrt [with reference to] to an end of season meeting.

Her number is 01702 304 135."

42. Mr. Jenkins then in fact sent an e-mail, also on 13 May 2004 to Helen Giles:-

"I had a call from Mr King requesting dates for a meeting. I have called a few times but missed you on each occasion.

Due to holidays and some overseas business trips, it will be difficult to get out to Southend for a while. I am in London however several times over the next few weeks. If Mr King has any trips planned into town, then hopefully we could make an arrangement to meet. Next Tuesday 18^th or Tuesday 25^th would be good for me anywhere in central London?"

43. Helen Giles did not get back to Mr. Jenkins until 18 May 2004. In an e-mail of that date she wrote:-

"Geoffrey would be available to meet with you on Tuesday 25 May in London at 10 am at a place of your choosing – preferably not too far from Liverpool Street station.

Could you please let me know whether you are available to meet with him at this time, and if so the venue."

44. Mr. Jenkins replied later the same day, also by e-mail:-

"OK, let's make the meeting at the Great Eastern Hotel, which is just outside Liverpool Street. I suggest we meet in Reception.

10.00 is possible, but 2.00 would be better for me. If Geoffrey can't do 2.00, then we'll do 10.00."

45. Initially a meeting at 10.00 a.m. was agreed. However, on 21 May 2004 Helen Giles sent Mr. Jenkins an e-mail changing the time:-

"Sorry it is late notice – Geoffrey has left a message on your voicemail – he would now prefer to meet at 2 pm on Tuesday. Please confirm all okay."

46. Mr. Jenkins replied the same day:-

"That's fine, 2.00 at the Great Eastern Hotel on Tuesday 25^th."

47. What is, perhaps, noteworthy about the issue of who suggested the meeting is not only that Mr. King was clearly in error in his recollection, but that, notwithstanding that the matter was heavily documented, as I have set out, he did not trouble to seek to refresh his memory from the relevant contemporaneous documentation before making his witness statement. Rather, when challenged about the matter in cross-examination and shown some of the relevant documents, Mr. King asserted that, whatever the documents appeared to show, he was confident that Mr. Jenkins had first approached him, and that approach had put it in his mind to ask Helen Giles to seek to arrange a meeting.
48. Mr. Jenkins made manuscript notes of the meeting on 25 May 2004. He told me that the notes were made during the meeting, and he was quite firm about that. Mr. King did not recall that Mr. Jenkins had made any notes during the meeting.
49. The notes made by Mr. Jenkins began with the name of Mr. King, a reference to "Southend" and the date 25 May 2004. There were then three numbered notes. Mr. Jenkins told me in cross-examination that the notes were not intended as a record of the meeting, still less as a verbatim record, but were really to remind him of what had to be done in the light of the discussions. The second numbered note related to a company called Ascent and is not relevant to any issue in this action. The first and third notes were in these terms:-

"1. send order for internet ticket sales

geoffrey.king@southend-united.co.uk

'2004 ticket holders average £280.

2. …

3. practicalities & suggestion on implementing loyalty card system."

50. Mr. Jenkins told me that the first note reflected the fact that it had been agreed that he would send Mr. King a new contract from Seatbooker. He was challenged that in fact that note did not use the word "contract", but rather the word "order", but Mr. Jenkins maintained that it had in fact been agreed that he would send a new contract.
51. The cover sheet in respect of the copy of the SSLA sent to Mr. King by Samantha Joshi on 27 May 2004 noted that the subject of the facsimile transmission was "Software Sale & Licence Agreement". The text of the message on the cover sheet was:-

"As requested.

Any problems please call me on the above number."

52. It was common ground that Mr. King did in fact telephone Samantha Joshi on 28 May 2004 and asked her whether the monthly fee of £499 was in addition to that payable under the DF Agreement or replaced it. It was also common ground that Samantha Joshi told Mr. King that it was not an additional fee.
53. Although Mr. King telephoned Samantha Joshi after receiving the copy of the SSLA sent by facsimile transmission, it was not suggested that he enquired why the SSLA had been sent to him, why it was described as "Software Sale & Licence Agreement", or why the Conditions were attached to it. The only enquiry he made was about the fee of £499.
54. On 28 May 2004 Mr. Jenkins sent to Mr. King the e-mail which I have already noted. In it he wrote:-

"Thank you for taking time earlier this week to discuss your IT objectives. In response;

Internet ticketing

As discussed, I attach an order for you to sign to include internet season tickets with your existing match day internet and managed service facilities. I would be grateful if you could print and sign two copies and post both back to me. I will then counter sign and return one copy. Since we have already put matters in hand, I would also be grateful if you could fax a signed front sheet back to me to save time on 0208 880 4041. Please be aware that the season ticket software will provide for renewals and new season ticket sales, but does not include the functionality for the 'you choose' option that Southend currently offer. If you would like this, then we will need a description of the exact functionality required, against which we will need to provide a quotation for bespoke development. Please let me know if you would like to investigate this area.

Loyalty scheme

We currently operate a loyalty scheme for Spurs. If you would like to install a scheme which was the same, or very similar, then the costs would be relatively modest, circa £2000 to £3000 in total. If bespoke changes were needed for Southend, then obviously the costs would be greater. If you would like to consider this, then please let me know and I will arrange for one of my colleagues to provide you with more details of the existing product.

CRM

We would not foresee any difficulties in integrating with the Ascent system. As discussed, I will make contact with Ascent and report back to you on the implications of the work involved."

55. Again, Mr. Jenkins was challenged that in this e-mail he made no reference to a new contract as such, and only referred to an "order". He said that he had not been writing the e-mail expecting that it would be analysed line by line in legal proceedings, and had written it as a salesman to deal with the substance of what had been discussed between him and Mr. King.
56. At 15.48 hrs on 28 May 2004 Mr. King sent a facsimile transmission to Samantha Joshi including a cover sheet. The transmission included a version of the front sheet of the SSLA signed by Mr. King. The cover sheet was in a standard printed form used by the Club. It was completed in manuscript by Mr. King. The subject he identified as "Season Ticket – Internet Sales". The material part of the message on the cover sheet read:-

"I confirm our conversation of this afternoon and attach the software sales & licence agreement.

I confirm that the managed service fee was discussed and that we agreed that this was the exist fee and not an additional cost.

It would be good if things could be up and running on Tuesday 1^st June 04 as I will then arrange to extend the discount period for one week."

57. Mr. Jeffrey Jupp, who appeared on behalf of Seatbooker, emphasised the use of the expression "software sales & licence agreement" by Mr. King as indicating clearly, he said, that Mr. King understood correctly that the SSLA was a contract document. Mr. Jupp also emphasised that the discussion concerning the managed service fee indicated that the managed service, previously the subject of the DF Agreement, was now intended to be encompassed within the SSLA. In other words, it was plain, submitted Mr. Jupp, that the SSLA was intended to replace the DF Agreement. Mr. Jupp contended that it was obvious that Mr. King understood perfectly well when he signed the SSLA that it was a contract and that it was to replace the DF Agreement.
58. Mr. Jenkins counter-signed the front sheet of the SSLA signed by Mr. King. He sent it back to Mr. King under cover of a letter dated 8 June 2004. The covering letter was brief. Mr. Jenkins said only:-

"Thank you for your recent order. Please find enclosed a countersigned copy for your files."

59. Miss Amanda Michaels, who appeared on behalf of the Club, emphasised the use of the word "order" by Mr. Jenkins in this letter also.
60. A month after the signature of the SSLA by Mr. Jenkins Mr. King wrote him a letter dated 8 July 2004. What had prompted the letter was a conversation with Mr. Baldwin about monies at that time owing by the Club to Seatbooker. What Mr. King wrote in his letter was:-

"I enclose three cheques in settlement of our outstanding account as agreed with your colleague.

It seems sensible to me as explained in our conversation that we alter the arrangements that exist between us to allow you to deduct the commission at source and pay over the balance to the Club. It would be necessary for you to guarantee that your credit card merchandising supplier would charge no more than the Club's existing one for this, to be fair to us both.

I would be grateful in the circumstances therefore if you would let me have the appropriate contract to complete in order that we may put this in hand before the start of the season."

61. Miss Michaels relied heavily upon the terms of that letter as indicating that Mr. King did not realise that what he was proposing was already covered by the SSLA, if a valid agreement in the terms of the SSLA had been made, and thus that he had not intended to enter into the SSLA. Mr. Jupp relied equally heavily upon the response by Mr. Jenkins in an e-mail dated 12 July 2004, which drew forth no reply or query or question from Mr. King. The material part of Mr. Jenkins's e-mail was:-

"Thanks for that.

The new contract we put in place recently (which included the season ticket facility) makes provision to operate on the basis you suggest, therefore no new or additional paperwork is necessary."

62. On 6 July 2005 a meeting took place between Mr. Baldwin, who was chief technical officer of Seatbooker, and Mr. Jit Aujla, commercial consultant, acting on behalf of Seatbooker, and Mr. King, Tracey Copping, Angela Winfield and Kathy Watkins of the Club. The meeting was in fact principally concerned with the question of why it was that sums collected by Seatbooker from customers of the Club purchasing Available Tickets over the internet and making payment via the HSBC Account had not included, in addition to the ticket price and an administration fee of £1.50, an amount of 8% of the ticket price to cover the commission due to Seatbooker. Some attention was given during the meeting to the issue of whose responsibility it was to determine the sums to be charged and to put the relevant details on the computer system. Mr. Aujla made a record of the meeting quite a long time afterwards, at a point at which he was asked to provide documents relevant to this action.
63. At paragraph 12 of his witness statement made for the purposes of this action Mr. Aujla explained how he first came to raise the issue of contractual responsibility:-

"I had taken a copy of the old Data Factors Limited agreement ("the DFL Agreement") with me, having picked up the wrong document and not the subsequent contract between Southend and Seatbooker ("the SSLA") – a simple error on my part. At the meeting I pointed out to Mr King that clause 16 of the DFL Agreement stated that Southend would be responsible for the maintenance of ticket price details. I said that Seatbooker did not accept liability for any errors made by Southend regarding the maintenance of ticket price details and reiterated that Seatbooker's contract was with Southend and Seatbooker would simply charge the commission rate in accordance with the contract. Southend were responsible for passing the commission charges on to their fans if that is what they wished to do."

64. At the commencement of his oral evidence Mr. Aujla corrected the reference to clause 16 of the DF Agreement to clause 9.2.3. He said that he had confused the relevant clause number with that to be found in the SSLA.
65. In his note of the meeting, which he and Mr. Baldwin confirmed in their evidence before me, subject to correction of the number of the clause referred to, was accurate in this respect, Mr. Aujla explained what happened when he made the points set out in paragraph 12 of his witness statement:-

"Geoffrey King opened the meeting by stating that there was a difference between what the club had been charged in commission by Seatbooker and what had been collected from the fans. The reason for this was discussed and established. Mr Aujla then pointed out to Mr King that according to clause 16 in the contract with Southend the club was responsible for maintenance of all ticket price details and that legally we (Seatbooker) were not liable for any errors made in this area. Further, our contract was with the club and not individual fans so we would always charge the club the commission rate as per the contract. What ever [sic] the club chose to pass onto [sic] the fan was there [sic] responsibility. Mr Baldwin then pointed out that in Seatbooker's experience our clients adopted several different strategies for passing on commission charges to their fans ranging form [sic] none to all. At his point Mr King indicated that the contract I was showing to the table was not current and that a new one was in force. Mr Aujla stated that even so the new contract would almost certainly have a similar clause and his point was still relevant. Mr King explained that in his opinion Seatbooker were responsible for the maintenance of the pricing module despite the legal argument. This was negated by both Mr Aujla and Mr Baldwin."

66. Mr. King was alerted to the point that he was said to have made reference to a new agreement at the meeting of 6 July 2005 by the pleaded case of Seatbooker. He dealt with it in his witness statement at paragraph 43:-

"As a response to our complaint, a meeting took place on about 8 July 2005 between Mr Baldwin and Mr Aujla of Seatbooker, and myself, Tracey Copping, Angela Winfield and Kathy Watkins of SUFC. The purpose of the meeting was to resolve the issue of Seatbooker having withheld the money from us. During the meeting, Mr Aujla started waving around a contract in a DataFactors folder. I remembered that there was another document which gave effect to the amendment agreed with Mr Jenkins, so I said something like "I don't think that's the right document you're waving at me, I think there is a new document". I did not say there was a new contract, just a document showing an amendment. In any case, I was not interested in what the contract said about who was ultimately responsible for the settings on the system. In practice, SUFC could not do it; that was why there was a help desk."

67. It thus appears that Mr. King accepted that there had been some reference by him at the meeting to the document which Mr. Aujla produced, a copy of the DF Agreement, not being the appropriate one, otherwise there was no point Mr. King making any comment at all. As what was being discussed at the time Mr. King made his comment was the liability under the relevant contract for putting price ticket details on the system, and it was being suggested by Mr. Aujla that that was dealt with by clause 9.2.3 of the DF Agreement, it would seem that it was only necessary or appropriate for Mr. King to have said that there was another document if he supposed that that other document contained material in relation to the issue being discussed. That, of course, was wholly inconsistent with the case of the Club before me, which was that the DF Agreement was that which it had been agreed between Mr. Jenkins and Mr. King at their meeting on 25 May 2004 should continue in effect, subject only to variation to include provision for the sale of season tickets over the internet.
68. I was very impressed by Mr. Jenkins as a witness. He struck me as very fair and balanced in his evidence. He thought about the questions which he was asked and took trouble to give answers which he considered were accurate. In my judgment the evidence of Mr. Jenkins was supported by the contemporaneous documents to which my attention was drawn. I was also impressed by the evidence of Mr. Baldwin and that of Mr. Aujla. Each, I am satisfied, was doing his best to assist the Court with his recollection of relevant events. In my judgment the evidence of each in relation to contemporaneous events was substantially accurate. In contrast, I was not impressed by Mr. King as a witness. His evidence seemed to me to be at variance from the contemporaneous documents which were put in evidence and his explanations for the divergencies put to him by Mr. Jupp I found by and large implausible. Not the least of these implausibilities was the assertion of Mr. King that what Mr. Jenkins primarily wished to tell him at the meeting on 25 May 2004 was that he, Mr. Jenkins, had concerns about the corporate governance of Seatbooker, and was intending to leave. I accept the contention of Mr. Jupp that it is inconceivable that, if Mr. Jenkins had said any such thing, Mr. King would have contemplated for a moment putting any further business the way of Seatbooker.
69. In the result I accept the evidence of Mr. Jenkins as to what was discussed and agreed at the meeting on 25 May 2004 in preference to the account of Mr. King. I therefore find that Mr. King did agree that the Club would enter into a new agreement with Seatbooker in place of the DF Agreement. I accept that the use for the purposes of selling Available Tickets and season tickets over the internet of the HSBC Account was discussed and agreed. I reject the suggestion that what was agreed was simply what was characterised in the Amended Defence and Counterclaim as "the Oral Variation". I also reject the suggestion that Mr. King agreed to the making of a new agreement as a result of any misrepresentation on the part of Mr. Jenkins that such was only intended to set out in writing agreed terms of variation adding a season ticket service to the DF Agreement. I am completely satisfied that Mr. King made no mistake in entering into the SSLA. I find that no mistake of any kind was made by anyone in relation to the SSLA.
70. It is therefore necessary to turn to consider the other lines of defence upon which the Club relied in answer to the claims of Seatbooker.

The other lines of defence of the Club

71. Some of the alternative grounds of defence relied upon can be dealt with rather summarily. It follows from my conclusion that the SSLA was a valid and binding agreement and replaced the DF Agreement that the Club could not rely upon any provision of the DF Agreement, in particular clause 6.3, as entitling it to determine the SSLA Agreement.
72. There was a suggestion on behalf of the Club that Seatbooker had been in breach of contract, such that the Club was entitled to determine any relevant contract, by not paying to the Club, within three days of receipt of sums into the HSBC Account, the sums paid in respect of the sales of Available Tickets and season tickets over the internet. How the matter was pleaded at paragraph 29 of the Amended Defence and Counterclaim was:-

"From about October 2004 to March 2005, sales were processed through SUFC's Lloyds Cardnet account, as Seatbooker UK/the Claimant was unable to provide its credit card service, and Seatbooker UK and then the Claimant invoiced SUFC for commission on ticket sales as aforesaid. Otherwise, from late May 2004 to about September 2005, Seatbooker UK/the Claimant collected monies for ticket sales and associated fees directly from the purchasers, and accounted to SUFC for such sales. By the mutual consent of the parties, at all times when Seatbooker/the Claimant was claiming such monies, the net sums due were to be rendered to SUFC within 3 days of receipt. In the circumstances, payments became due on that basis by virtue of the course of dealing between the parties. Alternatively it was an implied term of the Oral Variation that Seatbooker UK/the Claimant would account to SUFC within a reasonable time, such time being 3 days after receipt."

73. A complete answer to the point was that clause 16 of the SSLA provided for remittance by Seatbooker to the Club of sums arising from sales over the internet within thirty days of the relevant ticket sale.
74. However, there was in any event, as it seemed to me, no substance of any sort in the complaint. No one contended that it had been agreed expressly that Seatbooker would pay to the Club sums paid into the HSBC Account in respect of the sale of Available Tickets or season tickets of the Club over the internet within three days. What in fact happened, according to the evidence of Mr. Baldwin, which I accept, was that the Club was often, perhaps usually, short of cash, and thus asked to be paid any significant sums received into the HSBC Account as soon as possible. As Seatbooker had in fact received the sums in question it was prepared to assist its customer, the Club, by passing on monies received as soon as it could. That was a matter of goodwill, not a matter of obligation.
75. The other ground upon which it was contended that the Club was entitled to determine the SSLA merits a little more attention.
76. It was, I think, common ground, that the intention of the Club in relation to the sale of Available Tickets over the internet was that the purchaser of a ticket would pay not only the face value of the ticket, but also an amount of 8% of the face value of the ticket, representing in fact the commission payable to Seatbooker by the Club in respect of the sale, and an administrative charge of £1.50 per transaction. In order to achieve the result of each of these elements being paid by the purchaser of an Available Ticket it was necessary to enter into the software of the computer by which the operation of the internet purchasing was controlled the elements of the face value of the ticket ("the Price"), the percentage addition to cover the commission ("the Commission Element") and the fixed charge of £1.50 as the administration transaction charge ("the Transaction Charge"). Each of these elements could be put into the software supplied by Seatbooker using particular screens.
77. Apart from the intended arrangements in relation to the sale of Available Tickets over the internet, it was also intended that in respect of the sale of season tickets over the internet the purchaser would pay the price of the season ticket ("the Season Price") and the Transaction Charge, but nothing else. Again, in order to achieve the result of those elements being paid by a purchaser of a season ticket it was necessary to enter into the software of the computer by which the operation of the internet purchasing was controlled the Season Price and the Transaction Charge. Once more the mechanism for putting these elements into the software was by use of particular screens.
78. The relevant screens in the software were, first, the "System Parameters" screen, then the "Event Maintenance" screen, in relation to sale of Available Tickets, or the "Season Maintenance" screen, in relation to sale of season tickets.
79. The Transaction Charge could be entered on the System Parameters screen. The Price, or the Season Price, and any Commission Element, had to be entered on the Event Maintenance screen or the Season Maintenance screen, as the case might require. The Commission Element was entered in a section of the relevant screen entitled "Per Ticket Admin Fee/Availability". A line in that section was designated "Fee Type V or P". "V" indicated value, while "P" indicated percentage. Depending upon whether one chose V or P, the next line, entitled "Fee", would either show a percentage or a cash amount. To enter the Commission Element at 8% in the Event Maintenance screen one therefore clicked on P in the Fee Type V or P line, and then put 8 in the Fee line. The Season Maintenance screen also contained a "Per Ticket Admin Fee/Availability" section identical to that of the Event Maintenance screen. By clicking on V and entering 1.50 one could set up the Transaction Charge for the sale of season tickets. However, in order to have both the Transaction Charge and the Commission Element on the sale of Available Tickets it was necessary to enter the Commission Element in the Event Maintenance screen and the Transaction Charge in the System Parameters screen.
80. The System Parameters screen also included a facility to set a "Maximum Transaction Charge". If a Maximum Transaction Charge was entered in the System Parameters screen it overrode whatever was the result of what was included in the Event Maintenance screen or the Season Maintenance screen. In other words, if the Event Maintenance screen was set to include the Price and the Commission Element, and the System Parameters screen was set to include the Transaction Charge, but the Maximum Transaction Charge was also set, the maximum which could be charged in respect of a sale of an Available Ticket would be whatever was the setting of the Maximum Transaction Charge. Setting the Maximum Transaction Charge was one way of ensuring that only a single Transaction Charge was levied on a sale of season tickets, even if more than one season ticket was bought.
81. It was common ground, as I understood it, that how the software supplied by Seatbooker was set from about August 2004 until about the beginning of July 2005 was such that the Commission Element was not added to the Price and the Transaction Charge on sales of Available Tickets to purchasers over the Internet.
82. The case for the Club was that it was the fault of Seatbooker that the Commission Element was not recovered from purchasers of Available Tickets. Miss Michaels did not commit herself definitely as to what precisely was the fault for which it was said that Seatbooker was responsible. How she put the matter at paragraph 27 of her written closing submissions was:-

"SUFC accepts its obligations under both contracts to input prices, fixtures and similar details onto the program. But SB's obligation was to provide a system which was fit for purpose and to provide adequate and effective help to SUFC in getting the system to run properly. A help line which cannot resolve a problem with the system is by definition not providing the promised service."

83. As I understood it, it was common ground that the reason why purchasers of Available Tickets over the internet were not charged the Commission Element was that the Maximum Transaction Charge had been set at £1.50. It was suggested that it was someone on behalf of Seatbooker who had set up, or advised on the setting up of, the relevant software in the first place and that this person should have ensured that the elements of cost desired by the Club be included. If that person had failed to achieve what was desired, by setting the Maximum Transaction Charge at £1.50 or advising that it be so set, then that was the fault for which Seatbooker was being held responsible. There was actually no evidence that anyone on behalf of Seatbooker had set up the software in the first place, and, by clause 16 of the SSLA, contractually the responsibility for setting prices and so forth was that of the Club. The highest that the evidence that Seatbooker may have advised on how the system be set up, and that such might have included setting the Maximum Transaction Charge at £1.50, was an internal e-mail dated 1 June 2004 between Mr. Brett Rookyard, a member of the telephone help line staff of Seatbooker, and Mr. Alex Hayward. In that e-mail Mr. Hayward responded to an enquiry from Mr. Rookyard as to how the system needed to be set up in order to limit to one Transaction Charge a sale of any number of season tickets. Mr. Hayward suggested two methods, one of which Mr. Rookyard told me in his evidence involved fixing the Maximum Transaction Charge. However, Mr. Rookyard's evidence was that it was not he who set up the system, or advised on how it be set up, so as to include a Maximum Transaction Charge of £1.50.
84. During the trial emphasis seemed to shift rather to the contention that the obligations of Seatbooker under clause 17 of the SSLA to support and maintain its software and to provide a telephone support line had been breached because, so it was contended, the Club had notified the Seatbooker telephone help line of the problem of the Commission Element not actually being collected from purchasers of Available Tickets over the internet from about August 2004, yet the problem was not resolved until sometime in about July 2005. It was common ground that the problem could have been resolved easily. As it seemed that the Event Maintenance screen had been set up properly, but a Maximum Transaction Charge of £1.50 had erroneously been entered in the System Parameters screen so as to override the provision concerning the Commission Element, all that had to happen was to delete from the System Parameters screen the Maximum Transaction Charge setting.
85. Mrs. Angela Winfield, who is, and was at the material time, employed by the Club as an accounts assistant, gave evidence of complaining about the failure of the software to charge the Commission Element in relation to sales of Available Tickets over the internet. In her witness statement she said:-

"12. From around August 2004, when the changes were first made, I began to notice an apparent error in the way match day tickets were being sold over the internet. 8% on top of face value of each ticket should have been being charged to the customer, but the month end statements I would print off the system showed that the additional charge, marked as "Admin" (which, being a percentage of the ticket value, was never a round number) was not being made. Instead, £1.50 was being charged. ….

13. When I noticed this discrepancy, I, Ms Watkins or sometimes the (then) ticket office manager Marisa Freeman, phoned the Seatbooker support service (usually Mr. Peckston or Mr. Rookyard) to report the problem. They accessed the system remotely and told us that it was fine and the 8% commission charge was in place. I estimate that we called Seatbooker approximately 15 times at (roughly) twice monthly then monthly intervals to enquire about this problem, but as we were extremely short staffed at that time, the calls tailed off to some extent. "

86. As I have noted, Mr. Rookyard was called to give evidence on behalf of Seatbooker. He did not recall that he had ever received any telephone call from the Club about the issue of the non-charging of the Commission Element. He said that he and Mr. Peckston were the only members of the telephone help line staff of Seatbooker between August 2004 and July 2005. He told me that Mr. Peckston had never mentioned to him any call from the Club about the problem. It appeared that there was a system within Seatbooker of logging any call to the telephone help line and giving the report a number. It did not appear that any number had ever been allocated to the problem of the Club not recovering from purchasers of Available Tickets over the internet the Commission Element. Moreover, although the Club and Seatbooker were in regular e-mail contact about a number of matters in the period August 2004 to July 2005, the first e-mail produced by the Club in relation to the issue of the Commission Element was dated 10 June 2005.
87. I have mentioned that the terms upon which the HSBC Account was opened included the giving of a bond by Mr. Jenkins. Mr. Jenkins decided at the end of 2004 to leave Seatbooker. Consequently he withdrew his bond. That had the effect that HSBC suspended the availability of the use of the HSBC Account. In order to deal with that problem it was agreed between Seatbooker and the Club that payment for Available Tickets sold over the internet would be made through the merchanting facilities available to the Club, with Seatbooker invoicing the Club for the commission due to it. HSBC was persuaded to re-commence the availability of the HSBC Account in about March 2005.
88. There was a dispute in relation to whether Seatbooker did in fact issue invoices in respect of the sums which it desired the Club to pay in the period October 2004 to May 2005 earlier than June 2005. Mrs. Winfield accepted that Seatbooker had issued an invoice dated 7 October 2004 in the sum of £408.31, which had been despatched to the Club and was stamped as having been received on 12 October 2004. However, that invoice had not been paid by June 2005. The reason why it had not been paid was, as Mrs. Winfield rather delicately put it, that there was a trend on the part of the Club not to settle its accounts until suppliers pressed for payment. The case for Seatbooker was that it had produced invoices at the end of October 2004 and at the end of each succeeding month up to and including May 2005, and had sent them to the Club, but that the Club had not settled any of them by June 2005. The case for the Club was that none of these monthly invoices was received by it. Mrs. Winfield told me in cross-examination that she had not noticed that she had not received invoices from Seatbooker during this period because she had been so busy.
89. Mrs. Winfield also told me in cross-examination that her understanding was that it was up to Seatbooker to collect its commissions on sales of Available Tickets from the purchasers of such tickets and that, if it did not, the Club was under no liability to pay any sum by way of commission to Seatbooker.
90. Because the Club had not paid sums which Seatbooker considered to be due, amounting to some £31,909.91, by the beginning of June 2005, and because by that time Seatbooker was holding sums paid into the HSBC Account sufficient to satisfy that debt, Mr. Baldwin decided to offset the sums due when accounting to the Club. He sent a facsimile transmission dated 9 June 2005 to Mrs. Winfield at 10.39 hrs that day in which he said:-

"A CHAPS payment for £21541.05 has been made into your account it will be present as available funds today.

I have attached a statement showing all outstanding invoices and also a breakdown of merchant transactions.

If you have any queries, please contact me on the numbers below."

91. The statement attached showed the calculation of the sum of £31,909.91 by reference to the dates and numbers of various invoices.
92. Tracey Copping, the financial controller of the Club, replied to Mr. Baldwin's facsimile transmission by an e-mail sent at noon on 9 June 2005:-

"Thanks for the fax you sent through this morning. However I have just discussed with Geoffrey King the £31,909.91 you have with held [sic] as 8% commission, this commission is payable by the ticket purchaser and not by ourselves – this is stated within the agreement between Southend United and Seatbooker. Geoffrey has requested that you review the agreement and release the monies."

93. Mr. Baldwin responded at 3.09 p.m. the same day:-

"During the period oct [sic] 20^th 04 to 4^th april [sic] 05 the amounts paid into your account (as you were merchanting the monies yourself) gross, included our 8% commission on top of the ticket face values (which are all yours), all we have done in this respect is invoice you for our 8% that has been paid into your account already that you have been "holding" for us for several months:)

The invoices sent to yourselves every month during this period have mostly been left unpaid, as you can see from the list, unless you can tell me otherwise. It makes complete sense to pay you the balance of monies owed in this contra fashion, how else would we realistically get paid for our services?

As Geoffrey pointed out previously, it makes sense for us to bank the monies and pay you the difference, as our account is a client account, whereas with southend's [sic] bank account, whatever is in there just gets spent/allocated. Elsewhere and seatbooker [sic] are left with a mounting debt position at southend [sic] that it inevitably finds hard to service.

If you are querying any of the invoice bills or service charges, I am more than happy to go through them, but there is no other money yet to release to southend [sic] that we have held back, although there were, happily, some sales yesterday and obviously more today, which will come to you in a couple of days."

94. Tracey Copping, in her turn, replied by an e-mail dated 10 June 2005 which contained the first written reference to the Commission Element not having been received by the Club from purchasers:-

"For the period you are stating we have not received amounts including 8% commission into our account. All that we receive is the ticket price plus £1.50 (postage) as highlighted by the transaction below which you can trace on your system;

…

Please explain where the 8% commission is or advise if the ticket purchaser will be invoiced by yourselves.

We have never received the invoices detailed on your fax of yesterday. They would have been recorded on our purchase ledger as outstanding."

95. It is interesting that Tracey Copping did not, in this e-mail, contend that Seatbooker had been told before about the non-receipt by the Club of the Commission Element, still less that Seatbooker had been told that on many previous occasions. In fact the point that she was making was misconceived because the transaction of which she set out details in her e-mail was the purchase of a season ticket. That was pointed out by Mr. Baldwin in his response to her e-mail, also dated 10 June 2005. In that e-mail Mr. Baldwin explained that what Seatbooker had charged by way of commission was 1% on sales of season tickets and 8% on sales of Available Tickets.
96. Mr. King now intervened in the correspondence. In an e-mail dated 13 June 2005 he did contend that Seatbooker had been told previously about the non-receipt by the Club of the Commission Element:-

"I have seen the correspondence between you and Tracey in regard to the £31,909.91 you are holding.

You are aware of course that the 8% charge for match tickets purchased via the web is borne by the purchaser and not the Club. Staff here have previously advised Seatbooker support staff, when setting games up, that the 8% charge was not being recorded but were advised by Seatbooker support staff that matters were in order.

Funds received by the Club have been for full ticket prices plus £1.50 handling charge and did not include the 8%. No invoices have been received from Seatbooker in respect of the 8% charge nor were they anticipated.

My comment about you processing purchases of season tickets through your merchant number was as a result of the Club's merchant restricting the flow of funds to the Club in respect of season tickets sold via credit cards. Seatbooker is entitled to a 1% commission on those sales which is payable by the Club and quite rightly can be deducted at source by Seatbooker.

In the circumstances I should be obliged if you would release the funds due to the Club without further delay. "

97. Mr. Baldwin replied in an e-mail of 13 June 2005 maintaining that the liability to pay the commission due to Seatbooker was that of the Club and not that of the purchasers of Available Tickets. He also contended that the setting of prices for Available Tickets was a matter for the Club. That drew forth an e-mail dated 14 June 2005 from Mr. King, which was that pleaded at paragraph 40 of the Amended Defence and Counterclaim:-

"Your email of 13 June 05 sent at 16.33 is difficult to believe in view of your email of 9 June 05 sent at 3.09 pm which I would remind you states:

…

This may have been what you thought the position should have been especially as the Club had not changed its protocol on passing the full cost of the service fee to the fans nor had it issued any instructions to Seatbooker to change the basis upon which the charges are made. It must have come as something of a surprise to you yesterday when you checked the position to find that the charges had not been passed on.

The £1.50 administration charge to which you refer is to cover mailing charges and has been in existence ever since we signed up and certainly since 25 April 2003 when it was detailed in an email to me from Clyde Bernstein. In this email he also acknowledges that "the Seatbooker service fee is passed on entirely to the fans". This fact is also acknowledged in various other letters and emails.

I have now had the opportunity of having the match set up data checked and have seen that the 8% service fee has been properly applied but despite this and despite SUFC staff checking the position with your support staff on each occasion the service fee has not been charged out. In the circumstances I can only assume that it is a programming error that occurred following the agreement with Meirion Jenkins in May 04 for Seatbooker to handle the Club's season ticket sales and match day sales through your Merchant Account. It was agreed that payment would be made to the Club net of the 8% service fee on match day sales which was to be collected from the fans and the 1% charge on season ticket sales which was not to be passed on to the fans. It seems that at some stage you had problems, as it eventually transpired with Mr Jenkins, and Seatbooker switched the merchant processing back through Cardnet the Club's merchant.

I find it remarkable that SUFC has not received any invoices from Seatbooker in respect [of] this service fee (commission) despite your assertions that they have been sent. The normal monthly managed service invoice is paid when it is received and normally following a chase from the Club as invariably the invoice is not sent. It is beyond belief that Seatbooker would allow such a balance to build up over such a long period without some call to ask for the account to be settled. We have after all spoken often enough.

I am advised that the total service fees (commission) you are holding for the 04/05 season is £34,409.39 and which in the circumstances should be released to the Club immediately failing which I will refer the matter to the Company's solicitors for collection. I am further advised that there is also due to the Club a further £54,857.89 to cover season ticket sales up to Monday 13^th June 2005 which I would request is transferred to the Club's account by close of business tomorrow."

98. Notwithstanding what was pleaded at paragraph 40 of the Amended Defence and Counterclaim, it does not seem to me that that e-mail can on any view be regarded as specifying a default under either the DF Agreement or the SSLA, or as amounting to a notice of termination of the DF Agreement or the SSLA. It was a straightforward demand for payment and a threat of legal proceedings if payment was not made, no more.
99. There followed a series of exchanges between Mr. King and Mr. Baldwin ventilating the issues which I have already identified. The detail of those exchanges is not presently material. The exchanges resulted in the meeting on 6 July 2005 to which I have referred earlier in this judgment.
100. Ultimately, as it seems to me, the issue to which the question of whose fault was the failure of the Club to receive the Commission Element in the period August 2004 to July 2005 gives rise which is relevant to whether the Club has a defence to the claim of Seatbooker, as opposed to a counterclaim, is whether, as at 6 October 2005, the date upon which Mr. King purported to terminate the SSLA by the 30 days notice given by his letter dated 7 September 2005, Seatbooker had repudiated the SSLA by failing to pay sums due, or by breach of some obligation to provide telephone help line services with reasonable skill and care, or reasonably promptly. That is not how the case for the Club had been pleaded, but how the case had been pleaded did not, for the reasons which I have endeavoured to explain, in fact provide any defence to the claims of Seatbooker. However, even taking a generous view of the issues raised by the Amended Defence and Counterclaim, it did not seem to me that the Club had made out any defence.
101. It was plain, in my judgment, that Seatbooker was entitled to be paid commission at a rate of 8% on sales of Available Tickets over the internet and commission at a rate of 1% on sales of season tickets over the internet. It was not suggested that the sums which Seatbooker retained were not properly calculated. Thus they were due to it from the Club at the date Seatbooker paid the sums which it accepted were due to the Club, after setting off those sums.
102. The real question was not whether the sums retained were due to Seatbooker, but whether the Club had suffered damage in the identical sums because they ought to have been added to the amounts claimed from purchasers of Available Tickets but had not been. If it were demonstrated that Seatbooker had been in breach of the SSLA in failing to provide telephone help line services with reasonable skill and care, or reasonably promptly, and that such failure had caused the Club damage, Seatbooker was liable in respect of such damage to the Club, and the amount of that damage could be set-off against the damages due to Seatbooker in respect of the wrongful repudiation of the SSLA. However, any such breach on the part of Seatbooker could not have justified the termination of the SSLA on 6 October 2005 by acceptance by the Club of a repudiation on the part of Seatbooker, because it was common ground that the effects of any alleged breach had been remedied in July 2005.
103. Thus, as it seems to me, the Club has no defence to the claim of Seatbooker that the Club terminated the SSLA wrongfully.
104. Since there is a counterclaim, not very clearly articulated, for damages for the type of breach which I have been discussing, it is convenient at this stage to indicate my conclusions as to whether there was in fact any breach.
105. I am not satisfied on the evidence that it was someone on behalf of Seatbooker who set up the software used by the Club in respect of sales over the internet in 2004. Mr. Rookyard denied that he had done so. He impressed me as a straightforward fellow who was doing his best to assist the Court and I accept his evidence without reservation. It was not the obligation of Seatbooker under the SSLA to set up the software in the configuration in which the Club wished to use it, but the obligation of the Club. No one was identified on behalf of the Club as being the Seatbooker person who set up the software. There was no clear evidence that anyone on behalf of Seatbooker had advised that the system should be set up with a Maximum Transaction Charge.
106. I was not impressed by Mrs. Winfield as a witness. I do not accept that she, or, to her knowledge, anyone else at the Club, had complained to the Seatbooker telephone help line about the non-receipt by the Club of the Commission Element from purchasers of Available Tickets over the internet. That evidence was not supported by any contemporaneous documentation, notwithstanding that there was frequent contact, in particular by e-mail, between the Club and Seatbooker. Given that Mrs. Winfield told me that she believed at the time that the loser, if the Commission Element was not being received by the Club, would not be the Club, but Seatbooker, there is no obvious reason for her to have taken any interest in whether the Commission Element was being received or not. The e-mail dated 9 June 2005 from Tracey Copping to Mr. Baldwin containing the assertion that the Commission Element was payable by the purchaser of an Available Ticket and not by the Club, said to have been sent following a discussion with Mr. King, indicated that Mrs. Winfield was not alone in her view of the significance of non-receipt of the Commission Element by the Club. Mr. King was asked about the e-mail dated 9 June 2005 in cross-examination. He maintained that he knew that it was of importance to the Club to receive the Commission Element in respect of sales of Available Tickets over the internet because of its liabilities to Seatbooker and that Tracey Copping must have misunderstood the position in writing as she did. I do not accept that. I find that the Club, through its relevant officials, was unconcerned about the non-receipt of the Commission Element by the Club because it took the view that the loser would be Seatbooker. During the period from about October 2004 to about March 2005 the Club in any event was receiving the sums raised by sales of Available Tickets on the internet into its own merchant facility, so its net income was unaffected unless, which no one considered was correct at the time, the Club remained liable to pay commission to Seatbooker. It is, moreover, important, as it seems to me, that the problem in relation to the non-receipt of the Commission Element was easy of resolution, as Mr. Rookyard told me, and it simply defies belief that, if it had been reported coherently to the Seatbooker telephone help line at any stage earlier than it was, it would not just have been dealt with. There would have been no reason not to. The resolution did not require any expenditure of money and little expenditure of effort. Mr. Rookyard told me that the issue could have been resolved over the telephone.
107. Thus I reject the suggestion that Seatbooker was in breach of any relevant term of the SSLA entitling the Club to damages.

The quantum of damages recoverable by Seatbooker

108. It is material, before coming to consider the facts relevant to the quantum of damages payable by the Club to Seatbooker, to consider the correct approach in law to the assessment of damages.
109. The only real issue of law relevant to the assessment of damages canvassed before me was whether, having regard to the fact that damages fell to be assessed as at the date of the acceptance of the wrongful repudiation, 24 October 2005, it was appropriate to have regard to matters occurring after that date.
110. The issue arose because, logically, if the assessment of damages fell to be undertaken as at a particular date, it could be said that the exercise to be undertaken by the Court was to put itself in the position as it was at the relevant date and predict what on the evidence would have happened relevant to the assessment of damages, regardless of what the evidence might establish had actually happened. The view that such was the proper approach was strongly held in some quarters until recently. Indeed, it has only been in the last year that the House of Lords has, by a majority, in Golden Strait Corp. v. Nippon Yusen Kubishika Kaisha [2007] 2 AC 353, finally established the principle that the Court may have regard, in assessing damages, to matters demonstrated to have happened after the date of the breach which are relevant to the assessment of damages. In that case charterers repudiated in December 2001 a charterparty of a ship due to run until mid-2005. A provision of the charterparty gave both parties the right to cancel the charter if war broke out between certain countries, including the United States, the United Kingdom and Iraq. As is notorious, on 20 March 2003 the Second Gulf War began between, on the one hand, the United States and the United Kingdom, and, on the other, Iraq. The issue was whether that fact was to be taken into account in assessing damages. The leading speech for the majority was that of Lord Scott of Foscote. His consideration of the issue, and conclusion, so far as presently material, were:-

"29. My Lords, the answer to the question at issue must depend on principles of the law of contract. It is true that the context in this case is a charterparty, a commercial contract. But the contractual principles of the common law relating to the assessment of damages are no different for charterparties, or for commercial contracts in general, than for contracts which do not bear that description. The fundamental principle governing the quantum of damages for breach of contract is long established and not in dispute. The damages should compensate the victim of the breach for the loss of his contractual bargain. The principle was succinctly stated by Parke B in Robinson v. Harman (1848) 1 Exch 850, 855 and remains as valid now as it was then:

"The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed."

If the contract is a contract for performance over a period, whether for the performance of personal services, or for supply of goods, or, as here, a time charter, the assessment of damages for breach must proceed on the same principle, namely, the victim of the breach should be placed, so far as damages can do it, in the position he would have been in had the contract been performed.

30. If a contract for performance over a period has come to an end by reason of repudiatory breach but might, if it had remained on foot, have terminated early on the occurrence of a particular event, the chance of that event happening must, it is agreed, be taken into account in an assessment of the damages payable for the breach. And if it is certain that the event will happen, the damages must be assessed on that footing. In The Mihalis Angelos [1971] 1 QB 164, 210, Megaw LJ referred to events "predestined to happen". He said that

"if it can be shown that those events were, at the date of acceptance of the repudiation, predestined to happen, then … the damages which [the claimant] can recover are not more than the true value, if any, of the rights which he has lost, having regard to those predestined events."

Another way of putting the point being made by Megaw LJ is that the claimant is entitled to the benefit, expressed in money, of the contractual rights he has lost, but not to the benefit of more valuable contractual rights than those he has lost. In Wertheim v. Chicoutimi Pulp Co [1911] AC 301, 307, Lord Atkinson referred to

"the general intention of the law that, in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed"

and, in relation to a claim by a purchaser for damages for late delivery of goods where the purchaser had, after the late delivery, sold the goods for a higher price than that prevailing in the market on the date of delivery, observed, at p308, that

"the loss he sustains must be measured by that price, unless he is, against all justice, to be permitted to make a profit by the breach of contract, be compensated for a loss he never suffered, and be put, as far as money can do it, not in the same position in which he would have been if the contract had been performed, but in a much better position."

31. The result contended for by the appellant in the present case is, to my mind, similar to that contemplated by Lord Atkinson in the passage last cited. If the charterparty had not been repudiated and had remained on foot, it would have been terminated by the charterers in or shortly after March 2003 when the Second Gulf War triggered the clause 33 termination option. But the owners are claiming damages up to 6 December 2005 on the footing, now known to be false, that the charterparty would have continued until then. It is contended that because the charterers' repudiation and its acceptance by the owners preceded the March 2003 event, the rule requiring damages for breach of contract to be assessed at the date of breach requires that event to be ignored.

32. That contention, in my opinion, attributes to the assessment of damages at the date of breach rule an inflexibility which is inconsistent both with principle and with the authorities. The underlying principle is that the victim of a breach of contract is entitled to damages representing the value of the contractual benefit to which he was entitled but of which he has been deprived. He is entitled to be put in the same position, so far as money can do it, as if the contract had been performed. The assessment at the date of breach rule can usually achieve that result. But not always. In Miliangos v. George Frank (Textiles) Ltd. [1976] AC 443, 468 – 469 Lord Wilberforce referred to "the general rule" that damages for breach of contract are assessed as at the date of breach but went on to observe that

"It is for the courts, or for arbitrators, to work out a solution in each case best adapted to giving the injured plaintiff that amount in damages which will most fairly compensate him for the wrong which he has suffered"

and, when considering the date at which a foreign money obligation should be converted into sterling, chose the date that "gets nearest to securing to the creditor exactly what he bargained for". If a money award of damages for breach of contract provides to the creditor a lesser or a greater benefit than the creditor bargained for, the award fails, in either case, to provide a just result.

…

38. The arguments of the owners offend the compensatory principle. They are seeking compensation exceeding the value of the contractual benefits of which they were deprived. Their case requires the assessor to speculate about what might happen over the period 17 December 2001 to 6 December 2005 regarding the occurrence of a clause 33 event and to shut his eyes to the actual happening of a clause 33 event in March 2003. The argued justification for thus offending the compensatory principle is that priority should be given to the so-called principle of certainty. My Lords, there is, in my opinion, no such principle. Certainty is a desideratum and a very important one, particularly in commercial contracts. But it is not a principle and must give way to principle. Otherwise incoherence of principle is the likely result. The achievement of certainty in relation to commercial contracts depends, I would suggest, on firm and settled principles of the law of contract rather than on the tailoring of principle in order to frustrate tactics of delay to which many litigants in many areas of litigation are wont to resort. Be that as it may, the compensatory principle that must underlie awards of contractual damages is, in my opinion, clear and requires the appeal in the case to be dismissed. I wish also to express my agreement with the reasons given by my noble and learned friends, Lord Carswell and Lord Brown of Eaton-under-Heywood, for coming to the same conclusion."

111. The kernel of the speech of Lord Carswell was at paragraph 63:-

"The point at issue in this appeal has never been considered by your Lordships' House and remains open for decision. Lord Bingham has placed strong emphasis in para 23 of his opinion on the importance of certainty in commercial transactions. I do not wish to cast any doubt upon that, but I have come to the conclusion that Langley J and the Court of Appeal were right in holding that the contingency of the outbreak of war, which had occurred before the damages fell to be considered in the arbitration, could be taken into account. I find myself in agreement with Lord Mance when he said [2006] 1 WLR 533, 544, para 26 that considerations of certainty and finality have in this case to yield to the greater importance of achieving an accurate assessment of the damages based on the loss actually incurred."

112. Again, the essence of the opinion of Lord Brown of Eaton-under-Heywood was to be found at paragraph 83:-

"In my opinion the owners' argument here seeks to extend the effect of the available market rule well beyond its proper scope and to do so, moreover, at the plain expense of Lord Blackburn's fundamental principle: to restore the injured party to the same position he would have been in but for the breach, not substantially to improve upon it. It is one thing to say that the injured party, mitigating his loss as the breach date rule requires him to do, thereby takes any future market movement out of the equation and to that extent crystallises the measure of his loss; it is quite another to say, as the owners do here, that it requires the arbitrator or court when finally determining the damages to ignore subsequent events (save where the defendants can demonstrate that at the date of breach some suspensive condition would inevitably – and immediately – have operated to cancel the contract). There is no warrant for giving the rule so extended application."

113. In my judgment, in the light of the speeches in Golden Strait Corp. v. Nippon Yusen Kubishika Kaisha from which I have quoted, the current state of the law is that damages for breach of contract fall to be assessed as at the date of the breach, but that in making that assessment it is appropriate to take into account matters which have occurred and which impact upon the question how valuable the contractual rights lost or broken would have proved to be, but for the breach of contract complained of. That, I think, was not in dispute between Miss Michaels and Mr. Jupp.
114. Attached to the Amended Particulars of Claim was a Schedule of Loss and Damage. That Schedule was introduced in this way:-

"1. The figures contained within this schedule are provided as an indication of the Claimant's claim. It is based on the information in the possession of the Claimant drawn principally from the actual sales made before the date of the breach and an assessment of the projected sales taking into account the likely growth of internet sales of match-day tickets over the period of the contract assuming that the Defendant's average attendance figures were to remain constant.

2. This schedule as currently drafted does not take account of the following:

2.1 The likely increase in attendance at the Defendant's ground given the current performance of the first team and likely promotion to the Football League Championship division.

2.2 The likely increase in ticket prices which will occur both as a consequence of inflation and as a consequence of promotion.

2.3 The likely increase in attendance once the Defendant completes its planned moved [sic] to a 20,000 seat stadium.

2.4 The accelerated receipt by the Claimant of sums due over the period ending May 2009.

These factors will be accounted for in a revised schedule which will be served once disclosure has taken place and once expert evidence has been obtained."

115. In fact no revised schedule was prepared until Mr. Jupp delivered his closing submissions, and no expert report was obtained on behalf of Seatbooker, although permission had been given for such evidence. In the result the only evidence of loss adduced on behalf of Seatbooker was that of Mr. Baldwin. Mr. Baldwin did not profess any qualifications or expertise in accountancy or the management of football clubs.
116. Of the factors listed in paragraph 2 of the Schedule of Loss and Damage, the Team was indeed promoted to the Football League Championship for the football season 2006 – 2007, but it was then demoted for the football season 2007 – 2008 to Football League One. I have already noted that the intended move to a new ground has not yet taken place and is not now expected to take place until 2010. It was common ground that a discount was appropriate in respect of such part of the damages to which Seatbooker was entitled as would not have been payable by the date of the trial if the SSLA had not been terminated. In the event it was agreed that the appropriate discount was 6% from sums found to be due in respect of the football season 2008 – 2009.
117. The Schedule of Loss and Damage proceeded on the basis that Seatbooker was entitled to compensation at the rate of 8% of the average face value ticket price of Available Tickets which would have been sold over the internet by Seatbooker in the period September 2005 to May 2009. The starting point was the date as from which the Club ceased to sell Available Tickets over the internet using the software supplied by Seatbooker. May 2009 was the end of the football season immediately before the earliest date at which the SSLA could lawfully have been terminated, 8 June 2009. The latter date was during the closed football season. Mr. Baldwin's assessment in the Schedule of Loss and Damage was based on an average ticket price of £17.50, 24 Home Matches per annum, and varying amounts of Available Tickets sold each year, specifically 1,090 per match in the calendar year 2005 between September and December inclusive, 2,000 per match in the calendar year 2006, 3,000 per match in the calendar year 2007, and 3,500 per match thereafter. Mr. Baldwin accepted in cross-examination that his figure of £17.50 had been calculated on the basis of the average price of each ticket, including season tickets, actually sold over the internet during the period the Club was selling tickets using Seatbooker's software. It followed that the figure of £17.50 was excessive as an indication of the average selling price of Available Tickets. However, the result of Mr. Baldwin's calculation of loss from commission on the sale of Available Tickets was £350,000.
118. Mr. Baldwin's Schedule of Loss and Damage also included an element for loss of sales of season tickets, based on £205 per ticket, and supposed sales of 3,300 in 2006 and of 3,800 in each of 2007 and 2008. A commission of 1% of those supposed sales came to £22,345.
119. Further, there was a claim for loss of the monthly fees of £499 payable under the SSLA for 45 months, totalling £22,455. That calculation was not in dispute and it was accepted that that amount should be included in the calculation of the damages due to Seatbooker in the event that it succeeded in its claim.
120. Mr. Baldwin allowed an amount of £1,800 per annum as a saving made by Seatbooker as a result of not having to furnish the services for which the SSLA provided, totalling £6,750 over the period relevant to the assessment of damages. In cross-examination Mr. Baldwin explained that the only real saving as a result of not having to perform the services governed by the SSLA for the Club related to the cost of the link between the Seatbooker server and the equipment installed at the Club.
121. Permission was given not only to Seatbooker, but also to the Club to adduce expert evidence in relation to quantum. The Club availed itself of that permission, and instructed Mr. Douglas Hall, an accountant, to prepare a report. Mr. Hall was provided with various actual figures of sales of Available Tickets over the internet, of numbers of Home Matches, and of attendance at such matches, to enable him to attempt an assessment of the loss in fact suffered by Seatbooker. Those figures were supplied in two tranches. That had the consequence that Mr. Hall produced a first report, dated 10 January 2008, and then revised some of the figures in that first report in a supplemental report dated 21 January 2008.
122. Taking into account both League Matches and Cup Matches, the number of Home Matches played at the Ground was 26 in the football season 2002 – 2003, 31 in the football season 2003 – 2004, 29 in the football season 2004 – 2005, 25 in the football season 2005 – 2006, 26 in the football season 2006 – 2007 and an anticipated 30 in the football season 2007 – 2008. The annual average was thus, arithmetically, 27.8.
123. The total numbers of those attending Home Matches was, in the football season 2003 – 2004 147,255, in the football season 2004 – 2005, 170,626, in the football season 2005 – 2006, 196,855, and in the football season 2006 – 2007, 252,390. However, in the football season 2004 – 2005 a Cup match in fact played at Cardiff was treated as a "home" fixture for the Team and the number attending that match who purchased tickets through the Club, 36,216, was added by Mr. Hall to the numbers attending Home Matches in undertaking his calculations. In the previous year there was also a Cup match in which the Team participated and in respect of which tickets, in fact numbering 34,031, were sold through the Club. Mr. Hall did not include that figure in his calculations because that match was treated as an "away" fixture for the Team. In respect of each of these two Cup matches quite a large number of tickets were sold over the internet using the software supplied by Seatbooker and Seatbooker claimed, and was paid, commission at the rate of 8% on those sales. It was suggested that the relatively high level of internet sales distorted the picture of how many tickets, on average, were sold, or were likely to be sold, by the Club over the internet. However, the fact of the matter is that these were real sales on which Seatbooker made commission. Consequently, in my judgment, in order to assess, as a step on the way to calculating what Seatbooker had lost as a result of the wrongful termination of the SSLA, the percentage of the ticket sales effected by the Club in respect of which Seatbooker is entitled to commission, it is appropriate to bring into account both the numbers of those attending the two Cup matches and the numbers of tickets for those matches sold by the Club over the internet. Thus I adjust the attendance figure of 147,255 for the football season 2003 – 2004 to 181,286 and the attendance figure of 170,626 for the football season 2004 – 2005 to 206,842.
124. Of those attending Home Matches a considerable number were holders of season tickets. The numbers of season ticket holders were 1,480 in the football season 2003 – 2004, 1,787 in the football season 2004 – 2005, 2,939 in the football season 2005 – 2006, and 5,854 in the football season 2006 – 2007. In the football season 2007 – 2008 4,806 season tickets had been sold. If one assumed that every season ticket holder attended each League Match, which may be a little optimistic, the numbers of Available Tickets sold, plus those sold through the Club for the two Cup matches which I have mentioned, in each of the football seasons from 2003 – 2004 to 2006 – 2007, calculated as the actual numbers attending, less the number of season ticket holders multiplied by the number of League Matches, would be as follows:-

Football Total No. of Assumed No. of

Season Attendance Season Season Other

Ticket Ticket Tickets

Holders Attendance Sold

2003/04 181,286 1,480 34,040 147,246

2004/05 206,842 1,787 41,101 165,741

2005/06 196,855 2,939 67,597 129,258

2006/07 252,390 5,854 134,642 117,748

125. The figures for Available Tickets sold by the Club over the internet in the football seasons 2003 – 2004 to 2006 – 2007 inclusive were the subject of some debate during the trial. The figures for the seasons 2003 – 2004 and 2004 – 2005, which I accept are accurate, were derived from the invoices rendered by Seatbooker. Those which I accept for the other two seasons came from the "Internet Settlement Reports" of Tickets.com., but were adjusted to correct what Mr. Hall considered, and I agree, to be an overstatement of the figure for the season 2006 – 2007 by 1,000. Other sources suggested somewhat different figures, but I am disposed to accept the Tickets.com figures, with the adjustment which I have mentioned, as accurate for present purposes.
126. Of the total number of Available Tickets, and tickets relating to the two Cup matches to which I have referred, sold in the football seasons set out in the table in paragraph 124, I find that the number sold over the internet was 11,943 in 2003 – 2004, 20,760 in 2004 – 2005, 9,104 in 2005 – 2006 and 9,044 in 2006 – 2007.
127. Expressed as percentages of the number of actual sales of Available Tickets for Home Matches, plus the sales of tickets for the two Cup matches in the football seasons 2003 – 2004 and 2004 – 2005 which I have mentioned, the internet sales figures were, for 2003 – 2004 8.11, for 2004 – 2005 12.53, for 2005 – 2006 7.04 and for 2006 – 2007 7.68. Some figures in relation to the sale of Available Tickets over the internet in the current football season were put before me, but for present purposes it does not seem to me that those figures, which related only to League Matches, are particularly helpful.
128. The percentage of total Available Tickets, and the tickets relating to the two Cup matches, sold in the period 2003 – 2004 to 2006 – 2007 which were sold over the internet varied. The average over the period was 8.84. However, the average of the first two football seasons of the period, 10.32, was higher than the average over the latter two seasons, 7.36. There was vigorous debate before me as to why there should be a difference between the percentage sales made by the Club using the software supplied by Seatbooker, and the percentage sales made using the software supplied by Tickets.com. Miss Michaels submitted that I should find that the internet sales in the season 2004 – 2005 were unusually high because during that season the commission of 8% was not being charged to customers, as had been intended. Had that commission been charged, contended Miss Michaels, that would have depressed the level of internet sales, and that was a matter which I should take into account. Mr. Jupp countered that I should conclude that the levels of sales made by the Club using the software supplied by Tickets.com was depressed as compared with what use of the Seatbooker software would have been able to achieve, if the SSLA had not been terminated, because the Tickets.com software was inferior. Specifically the Tickets.com software did not offer to customers the facility of choosing a specific seat at the Ground when booking over the internet, and that, according to various comments on the ShrimperZone website, attracted adverse notice from fans of the Team. The ShrimperZone website was that of the supporters of the Team. Moreover, contended Mr. Jupp, when Tickets.com took over the supply of software to enable internet sales of Available Tickets the Club did not impose a commission charge of 8% on purchasers. Rather the charge was a flat rate of £1 per ticket sold. That amounted to only a modest increase, if one purchased more than one ticket, over the Transaction Charge which prevailed in the football season 2004 – 2005. In other words, there was not such an increase in price as to amount to a deterrent to purchase over the internet, if the service offered was otherwise thought to be satisfactory. In addition, Mr. Jupp relied upon the fact, which I think in the end was not in dispute, that there was a period between the termination of the use by the Club of the software supplied by Seatbooker and the commencement of the operation of the software supplied by Tickets.com, as the latter software did not seem to start effectively in use until the very end of September 2005.
129. It was common ground that, in order to assess damages for wrongful termination of the SSLA, one element to be considered was the loss of commission which Seatbooker would have earned in respect of the sale of Available Tickets, and any other match day tickets which the Club might have been able to offer, over the internet between September 2005 and May 2009. It was also common ground that the assessment of that element of loss involved reaching conclusions as to how many tickets would have been sold over the internet and at what prices. In respect of sales of Available Tickets which had actually taken place by the date of the trial I was urged, I think by both sides, to fix on a percentage of the actual sales which I found would have been achieved by the Club using the Seatbooker software and apply, for each relevant football season, an average internet sales price per Available Ticket for that season to the actual number which the percentage represented in order to reach a sum 8% of which was the amount of the commission lost to Seatbooker. For the current football season and the 2008 – 2009 season I was invited to assess the likely total number of sales of Available Tickets, the likely percentage of internet sales, if the SSLA had not been terminated, and the likely average price of such tickets sold over the internet. In principle those approaches seem to me to be appropriate. What I am really seeking to assess is the sum Seatbooker would have received by way of commission on the sale of Available Tickets over the internet if the SSLA had not been terminated and it had continued to offer the services for which the SSLA provided.
130. In my judgment the best evidence of the percentage of sales of Available Tickets actually made from September 2005 to date which would have been able to be achieved over the internet by use of the software supplied by Seatbooker, but for the termination of the SSLA, is the percentages which were in fact achieved by the Club using that software in the football seasons 2003 – 2004 and 2004 – 2005 – on average 10.32. Mr. Jupp contended that I should at least adopt as my starting point the highest percentage of internet sales achieved by use of the software supplied by Seatbooker in a football season, that is to say the 12.53 achieved in the season 2004 – 2005. He also submitted that I should in fact find that the percentage of internet sales would have increased. However, the only evidence in support of that contention was the belief of Mr. Baldwin that that was what he expected. The actual figures of sales achieved by the Club using the software supplied by Tickets.com did not support Mr. Jupp's contention. It did appear that some fans of the Team had been sufficiently unimpressed by the service supplied by the Club using the software of Tickets.com to record their dissatisfaction on the ShrimperZone website. I take that into account in concluding that it is not appropriate to conclude that the percentage of internet sales would have declined from what use by the Club of the software supplied by Seatbooker on average achieved. However, it is quite a long way from that finding to a finding that actually the percentage of internet sales would have increased, and it does not seem to me that the latter finding is justified. Miss Michaels submitted that I should find that, if the SSLA had continued, the Club would have adopted effectively the policy intended for the 2004 – 2005 football season of passing on to customers the 8% commission charged by Seatbooker for purchases over the internet and that that would have deterred sales. In a sense that submission was another way of putting her submission that I should conclude that the internet sales in the football season 2004 – 2005 were inflated by the commission not being charged, because the focus of attention was what would have been the level of sales if the Commission Element had been passed on to purchasers. Whether there would have been a deterrent effect or not, in my judgment, depends really upon how much the charge in cash would have represented. I shall come shortly to average Available Ticket prices. For the present it is enough to notice that the highest proposed average ticket price put before me was £21. That was suggested as that which might be applicable in the 2008 – 2009 football season if the Team secured promotion to the Football League Championship. 8% of £21 is £1.68. A charge of that magnitude would no doubt deter someone who could avoid it by attending easily at the Ground and buying a ticket there. However, it may not have the same effect on someone who did not have the ability conveniently to visit the Ground to buy a ticket. There was evidence that many Available Tickets were sold over the telephone, and that a charge of £1.50 is, and has for some years been, added to the ticket price as a postage or administration fee in respect of a telephone sale. Supporters of the Club are obviously prepared to accept such a charge, otherwise the Club would not have raised one. Purchase over the internet during the currency of the SSLA had the benefits not only that a ticket could be purchased at any time of day and without having to wait for a telephone call to be answered, but also of choosing one's seat as part of the internet experience. In those circumstances I am not satisfied that making a further charge to cover the 8% commission would have reduced the number of customers who would have purchased on the internet below the average numbers who in fact took advantage of the service offered by use of the software supplied by Seatbooker, or that the numbers who purchased over the internet in the football season 2004 – 2005 were increased because no such charge was made in that season. However, it seems to me that it is appropriate to average the percentages of sales achieved by use by the Club of the software supplied by Seatbooker over the two seasons during which the use of that software continued, rather than to accede to the suggestion of Mr. Jupp that I adopt as my starting point 12.53%. In the first year of sales of tickets over the internet purchasers did have to bear the commission of 8%.
131. It does not seem to me on the evidence that there is any justification for adopting a different percentage of internet sales of Available Tickets in respect of the calculation of the future losses of Seatbooker from that appropriate in respect of past losses.
132. While it is appropriate to base a finding as to the number of Available Ticket sales over the internet commission on which was lost by Seatbooker on an average of the percentages of its historical performance, the numbers to which that percentage has to be applied were in part historic and established by evidence, and in part have to be estimated. The evidence showed that the number of persons attending the Ground for Home Matches in the football season 2005 – 2006 after the Club had ceased, at about the end of August 2005, to use the software supplied by Seatbooker, was 171,043, calculated as the figure of 196,855 which I have already set out, less attendance at four matches in August 2005, amounting to 25,812. All of those four matches were League Matches, so that 19 League Matches remained to be played at home at the Ground during that season. Assuming that all of the 2,939 season ticket holders that year attended each of the remaining 19 matches, the number of Available Tickets purchased in the remainder of the 2005 – 2006 football season after the Club ceased to sell Available Tickets over the internet using the software supplied by Seatbooker was 115,202. On the assumption that all of the 5,854 season ticket holders in the season 2006 – 2007 attended all of the League Matches the number of Available Tickets purchased in that season was 117,748.
133. Up to the date of the end of the trial the Team had played 19 Home Matches in the football season 2007 – 2008. Those matches had been attended by a total of 129,853 people. On average, therefore, 6,834 people attended each match. Mr. Hall, in his first report, made at a time when the most recent Home Match had been that played on 5 January 2008, undertook some calculations on the basis of a total of 122,501 people attending the 18 Home Matches which had taken place by that date. One of his figures was that the average number of persons thus far attending Home Matches in the football season 2007 – 2008 (122,501 divided by 18) was 6,806. I do not think that the attendance at the additional match, which in fact took place on 19 January 2008, renders Mr. Hall's earlier calculations inaccurate in any worthwhile degree, and the points that he made in relation to his earlier calculation are still valid.
134. At paragraph 6.3.2 of his first report Mr. Hall set out a table showing the actual attendance at Home Matches up to and including the match on 5 January 2008, and comparing it with the actual attendance at Home Matches in the period of the previous season up to 6 January 2007. By that date the Team had played 17 Home Matches, which had been attended by a total of 159,435 people. A remaining nine Home Matches were played in the 2006 – 2007 football season, which were attended by a total of 92,955 people. The average number of attendees at the matches up to 6 January 2007 was thus 9,379, with the average number of attendees at the remaining Home Matches being 10,328. Mr. Hall went on to comment on these figures and their relevance to assessing the numbers of persons likely to attend Home Matches of the Team between now and the end of the 2008 – 2009 football season in May 2009:-

"6.3.3 This shows that in the 2007/08 season SUFC has played 18 home matches, the latest being on Saturday 5 January 2008, which was an FA Cup match. Across those 18 home matches the total attendance has been 122,501, an average per match of 6,806.

6.3.4 To the same point in the 2006/07 season SUFC had played 17 home matches (the last on 6 January 2007 was also an FA Cup match). Across those 17 home matches the attendance had been 159,435, an average per match of 9,379.

6.3.5 In the remainder of the 2006/07 season SUFC had played a further 9 home matches with a total attendance of 92,955 an average of 10,328 per match.

6.3.6 SUFC's average home match attendance in the period to 5 January 2008 has therefore fallen by 27.4% (6,806 compared to 9,379) against the equivalent period in 2006/07.

6.3.7 Were SUFC's average home match attendance in the remainder of 2007/08 to be lower than the equivalent period in the 2006/07 season the average home match attendance would be 7,495 (10,328 – 27.4%).

6.3.8 Allowing for a further 12 matches in the 2007/08 season to a total of 30 (see paragraph 4.1.12 above) the total attendance for the remainder of the season would be 89,938, taking the total attendance for the 2007/08 season to 212,439.

6.3.9 I consider this to be a reasonable basis on which to project the number of home matches that SUFC will play and the home match attendance that it will achieve in the remainder of the 2007/08 season.

6.4.1 I consider it reasonable to project the number of home matches that SUFC will play in the 2008/09 season based on the average number of home matches that took place in the 2002/03 to 2007/08 seasons, as calculated at paragraph 4.1.10 at 27.8.

6.4.2 This average covers a number of years in which the performance of SUFC in various competitions has varied. It is not possible to anticipate SUFC's performance in similar competitions in the 2008/09 season so such an average based on a number of past seasons would in my view be a reasonable basis for such a projection.

6.4.3 I also consider it reasonable to project the attendance that SUFC will achieve at its home matches in the 2008/09 season based on the average attendance for home matches calculated for 2007/08 at paragraph 6.3.2 at 7,081."

135. The assessment which Mr. Hall made of the likely attendance at Home Matches of the Team in that passage was rather borne out by the fact that the number who attended the match on 19 January 2008 was 7,352, whilst his analysis proceeded on the basis that on average 7,495 people would attend the remaining Home Matches in the 2007 – 2008 football season.
136. It was, I think, common ground that the number of people who attend particular home football matches tends to reflect how well the home team is doing in various competitions at the relevant time. As I have already remarked, the Team played in the Football League Championship in the season 2006 – 2007, and was then relegated to Football League One for the current season. Thus it seems that it would be expected that the numbers of those attending Home Matches this season would be lower than last season, which is exactly what the figures showed. In my judgment, the approach which Mr. Hall adopted to assessing the likely attendance of people at the remaining Home Matches for the current football season is logical and there is no obvious alternative to it. Thus I accept that it should be supposed that the total number of persons attending Home Matches in the season 2007 – 2008 will be that calculated by Mr. Hall, 212,439. The number of season tickets sold for the current season is 4,806. There remain 10 League Matches to be played. If one assumes that each of the season ticket holders has attended, and will attend, each of the League Matches in the current season, that accounts for 110,538 of the attendances, leaving 101,901 Available Tickets for potential sale over the internet. In fact it appears that only 3,019 Available Tickets have been sold over the internet.
137. Mr. Hall assumed that the average numbers of those attending Home Matches in the football season 2008 – 2009 would remain as he had calculated for the current season, 7,081 (212,439 divided by 30 matches). It was suggested by Mr. Jupp that that was a pessimistic assumption because there was a chance that the Team would be promoted back to the Football League Championship at the end of the current season. At the end of the trial the Team stood at eighth position in Football League One. I was told that the top two teams at the end of the season are automatically promoted. Apparently the teams which end in the third, fourth, fifth and sixth positions then play against each other for a third promotion place. What was suggested was that the Team might finish within the top six at the end of the season and thus have a chance of the third promotion place. That suggestion was put to Mr. King. He accepted that that was not impossible, but he did not think it likely. It is not the function of the Court to predict the outcome of football matches, but it does not seem to me that there is any reason to suppose that the Team has any serious chance of promotion at the end of the current season. As at the end of the trial the Team had played 26 matches and had 37 points. Two other clubs, Tranmere and Yeovil, also had 37 points, but had played 27 matches, and so occupied, respectively, the ninth and tenth place in Football League One. At the top of the division was Swansea with 50 points, having played 24 matches, followed by Carlisle with 45 points, having played 25 matches. The next four teams were Nottingham Forest with 44 points from 25 matches, Doncaster with 44 points from 26 matches, Leeds with 43 points from 27 matches and Leyton Orient with 43 points also from 27 matches. Walsall stood immediately ahead of the Team with 42 points from 27 matches. The Team was thus six points behind the sixth highest team in the division, but with only one match in hand. Walsall had no matches in hand, but was only one point behind. I conclude that on the balance of probabilities the Team will be playing in Football League One next season.
138. In the light of that finding I accept the conclusion of Mr. Hall that it is appropriate to suppose, for the purpose of assessing damages, that the sales per Home Match of Available Tickets in the season 2008 – 2009 will be on average the same as he calculated for the current season, 7,081. I also consider it appropriate to calculate the total number of persons likely to attend such Home Matches on the basis of an average number of Home Matches over the period from the commencement of the 2002 – 2003 football season until now, but since one cannot play a fraction of a match, I propose to proceed on the basis that there will be 28 Home Matches in the football season 2008 – 2009. Thus the total number of people attending Home Matches in that season I find will be 198,268. Mr. Hall assumed that the number of season tickets likely to be sold for the next football season would be the same as in the current season, namely 4,806. That assumption follows Mr. Hall's general logic, which I accept, and thus I adopt that figure. On that basis, and continuing my assumption that all season ticket holders will attend all League Matches, I find that the number of Available Tickets potentially able to be sold over the internet in the football season 2008 – 2009 is 87,730 (198,268 – (4,806 x 23)).
139. The average prices of Available Tickets sold over the internet in the football season 2005 – 2006 after the Club ceased to use the software supplied by Seatbooker Mr. Hall calculated was £13.34. In the following season Mr. Hall calculated the average sale price for such tickets at £17.58. For the football season 2007 – 2008 thus far Mr. Hall calculated the average sale price of Available Tickets over the internet at £14.82. In his calculations he assumed that that average price would continue until the end of the football season 2008 – 2009. I accept his evidence of these average prices and his assumption as to the average price for the future. The only figure Mr. Jupp contested was that for the football season 2008 – 2009. He contended that it should be assumed that the current average ticket price of £14.82 would be increased by 3%, as he contended in line with inflation. There was no evidence that the Club intended to increase the average price of tickets by 3%, or that it had ever increased prices annually in line with inflation. Rather the evidence was that if the Team was promoted to the Football League Championship the Club wished to increase average prices for tickets sold over the internet to £21. However, if that promotion was not achieved, there was no evidence of any intention to increase prices.
140. The loss which Seatbooker sustained by reason of the wrongful termination of the SSLA in respect of loss of receipt of 8% commission on sale of Available Tickets over the internet in the period from September 2005 to May 2009 falls to be calculated on the basis of 8% of 10.32% (the percentage which I have found of Available Tickets which would have been sold over the internet) of the following attendance figures and average prices:-

Season Attendance Average Price Total

2005 – 06 115,202 £13.34 £1,536,794.68

2006 – 07 117,748 £17.58 £2,070,009.84

2007 – 08 101,901 £14.82 £1,510,172.82

2008 – 09 87,730 £14.82 £1,300,158.60

£6,417,136.84

141. 10.32% of the sum of £6,417,136.84 is £662,248.51. 8% of that is £52,979.88. However, it was common ground that the figure in respect of the season 2008 – 2009 ought to be reduced by 6% to reflect the fact that compensation was being paid now in respect of sums which would not have been paid until during the course of that season, but for the wrongful termination of the SSLA. 10.32% of £1,300,158.60 is £134,176.36. 8% of £134,176.36 is £10,734.10. 94% of the latter figure is £10,090.06. £644.04 therefore falls to be deducted from the sum of £52,979.88, making the total amount of damages in respect of this element £52,335.84.
142. Turning to the element of loss constituted by inability to sell season tickets over the internet, the evidence was that 33 season tickets out of 1,787 were sold over the internet in the football season 2004 – 2005, the first time season tickets were so sold, and 198 season tickets out of 2,939 were sold over the internet in the football season 2005 – 2006. Thereafter season tickets were not sold over the internet. The evidence was that the time at which season tickets are sold is before the start of the football season in August. The selling of season tickets over the internet in 2004 commenced about the beginning of June. Thus it may be that some season tickets for the football season 2004 – 2005 had already been sold before they became available on the internet. It may also be that the period available to make known the fact that season tickets were available over the internet was limited, and that that hampered sales. However, the ability of purchasers to buy season tickets over the internet was established by the start of the season ticket selling season in 2005 and the full period of the selling season was available for internet sales. The figures show that 1.85% of season tickets for the football season 2004 – 2005 were sold over the internet, and 6.74% of season tickets for the following season were so sold.
143. Mr. Hall prepared calculations on the basis of assuming that the same percentage of season ticket sales as sales of Available Tickets would have been sold by the Club, but for the wrongful termination of the SSLA. In her closing submissions Miss Michaels queried the logic of that assumption. She submitted, rightly as it seems to me, that the appropriate assumption should be based on the percentage of season tickets sold over the internet of all season tickets sold. As I understood it, she accepted that the percentage sold in the football season 2004 – 2005 could not be considered representative, and thus that the percentage 6.74 should be adopted. I accept that submission. Miss Michaels did not submit that no account at all should be taken of loss of sales of season tickets over the internet because there were in fact no sales after the football season 2005 – 2006, and the Club was not contractually bound to offer season tickets over the internet. Mr. Jupp adopted Mr. Hall's approach of assuming percentages of the same level as those applicable to sales of Available Tickets over the internet, but contended for considerably higher percentages than that which I have adopted.
144. It appeared to be common ground that the average prices of season tickets sold by the Club were £249 in the football season 2006 – 2007 and £253 in the football season 2007 – 2008. Mr. Jupp contended that it should be assumed that the average price for the football season 2008 – 2009 would be increased by 3%, as he said, in line with inflation. The case for the Club was that it should be supposed that the average season ticket price would not increase for the football season 2008 – 2009. There was no evidence to support an increase in line with inflation and I find that the average season ticket price in the football season 2008 – 2009 will remain as it currently is.
145. The loss which Seatbooker sustained in relation to loss of commission on season tickets as a result of the wrongful termination of the SSLA was 1% of the value of the lost tickets. Assuming that 6.74% of the actual season tickets sold for the football seasons 2006 – 2007 and 2007 – 2008 would have been sold over the internet, the value of tickets lost in the season 2006 – 2007 was £98,355 (6.74% of 5,854, being 394.56, say 395, multiplied by £249), while the value of the tickets lost in the season 2007 – 2008 was £81,972 (6.74% of 4,806, being 323.92, say 324, multiplied by £253). The loss of commission for these two years was thus £1,803.27. The calculation for the loss for the football season 2008 – 2009 is similar to that for the season 2007 – 2008, but, as already explained, it needs to be reduced by 6% for early payment. Thus the figure for that year is £770.54. The total value of this element of loss is thus £2,573.81.
146. As I have noted, it was common ground that the value of the element of loss of the monthly fees payable under the SSLA as a result of the wrongful termination of the SSLA was £22,455.
147. The only other element which needs to be assessed in order to reach a conclusion as to the damages to which Seatbooker is entitled is the costs saved as a result of not having to furnish the services for which the SSLA made provision. The last financial statements of Seatbooker which had been produced were those for the year ended 31 January 2006. Mr. Hall considered the Trading and Profit and Loss Account for the year ended 31 January 2006 included in those financial statements. He found it opaque because of the imprecise descriptions of various elements included in the Cost of Sales, and the uncertain reason for treating "Internet Connectivity – Broadband" and "Credit Card Charges" as Administrative Expenses rather than as part of the Cost of Sales. Mr. Hall, doing the best he could, and noting that the percentage of gross profit shown in the accounts amounted to 83.1%, assumed that perhaps 10% of the sums which were found to be due to Seatbooker in respect of the other elements which I have considered should be treated as having been saved as a result of not having to perform Seatbooker's obligations under the SSLA.
148. The only evidence called on behalf of Seatbooker as to likely cost savings was that of Mr. Baldwin. He had no role in preparing the Trading and Profit and Loss Account for the year ended 31 January 2006. His awareness of the costs of the business was limited. However, he did tell me that the only costs specific to the service provided to the Club were those of the link between the Club's premises and the server used by Seatbooker. In the Schedule of Loss and Damage which he prepared he assessed the cost savings at a total of £6,750. I accept the evidence of Mr. Baldwin as to the nature of the cost savings made as a result of the termination of the SSLA. In default of more definite information I accept his assessment of the value of the cost savings at £6,750. Although I am sure that Mr. Hall was doing his best to help me in his assessment of cost savings, I am confident that, in the light of the evidence of Mr. Baldwin which I accept, Mr. Hall's assessment was over-stated.
149. In the result I find that the damages to which Seatbooker is entitled as a result of the wrongful termination by the Club of the SSLA are the sum of £70,614.65, calculated as £52,335.84 in respect of loss of 8% commission on sales of Available Tickets over the internet, plus £2,573.81 in respect of loss of 1% commission on sales of season tickets over the internet, plus £22,455 in respect of loss of the monthly fees of £499, less cost savings of £6,750.

Conclusion

150. There will be judgment for Seatbooker in the sum of £70,614.65, together with interest, as to which I will hear Counsel.
151. The counterclaims of the Club, which, with the exception of that based on the withholding of the amount offset by Seatbooker in respect of its commissions on sales of tickets over the internet, were all said to be founded on alleged mistake or misrepresentation, are all dismissed.