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
		16/03/2009

Mr Justice Wyn Williams :

Introduction

1. The Claimant is a renowned boxing promoter. Its director is Mr Frank Warren who has been involved in the sport of professional boxing since the mid 1970s. His involvement has been twofold; he has promoted professional boxing matches and he has managed professional boxers. The Claimant derives its reputation as a renowned boxing promoter, in large measure at the very least, from the reputation of Mr Warren.
2. The Defendant is an unbeaten professional boxer. He has been world champion in two divisions, namely super middleweight and light heavyweight. Between early 1997 and early 2008 the Defendant and Mr Warren enjoyed an association which, to the outside world at least, was mutually beneficial. From January 1997 to September 2007 Mr Warren was the Defendant's manager. Between 21 January 1997 and 19 April 2008 every boxing match undertaken by the Defendant (except one) was promoted by Mr Warren personally, the Claimant or a company under Mr Warren's control. In this period the Defendant earned in excess of £16,000,000.
3. On 4 November 2007 the Defendant boxed a man called Mikkel Kessler at the Millennium Stadium in Cardiff. Two days previously, on 2 November 2007, the Defendant signed a written document which was intended to confirm an agreement reached between the Claimant and Defendant. For the purposes of this introduction the salient part of the document is clause 3 which reads:-

"3. You agree to remain exclusively promoted by me for one further fight after the bout."

It is common ground that the reference to "me" in that extract was a reference to Mr Warren acting on behalf of the Claimant.

4. The Defendant was successful in his bout against Mikkel Kessler. Thereafter, steps were put in place to arrange another bout. The Defendant's opponent of choice was Bernard Hopkins who was then the Ring Magazine light heavyweight world champion.
5. On 7 December 2007 a staged confrontation took place between Bernard Hopkins and the Defendant at a press conference in Las Vegas. That was instrumental in ensuring that a boxing match between the two men took place. By virtue of the agreement which the Claimant and Defendant had concluded before the bout with Mikkel Kessler the match with Bernard Hopkins was to be promoted or at least co-promoted by the Claimant.
6. In the weeks that followed discussions took place about the terms upon which the Defendant would engage in the bout with Bernard Hopkins. The terms could not be agreed and, consequently, it was decided that there should be a meeting on 15 January 2008. The meeting was to be attended by Mr Warren and Mr Ed Simons, on behalf of the Claimant and the Defendant, his father and Mr Gareth Williams, then the Defendant's solicitor.
7. By 15 January 2008 the Claimant had accepted that any bout between Mr Hopkins and the Defendant would be co-promoted. The promoters would be Golden Boy Promotions Inc., an American company in which Mr Hopkins had an interest (hereinafter referred to as Golden Boy) and the Claimant. It had also been agreed that each promoter would receive 50% of the profits generated by the bout.
8. It is common ground that at the meeting on 15 January 2008 there was extensive discussion about the Defendant's remuneration in relation to his proposed bout with Mr Hopkins. The parties agree that the discussion centred on whether or not the Defendant should receive 75% or 80% of the Claimant's share of the profits of the bout. It is also common ground that the Claimant was anxious to reach an agreement with the Defendant to promote any further bouts which the Defendant might undertake after the bout with Mr Hopkins. The case for the Claimant as presented in its most recent pleading is that an agreement was reached as between the Claimant and Defendant upon terms that the Claimant would receive 20% and the Defendant 80% of the Claimant's share of the profits generated by the bout and that the Claimant would continue to act as the Defendant's promoter for all his future bouts on the same profit sharing split as between themselves.
9. The Defendant admits that a binding oral agreement was concluded on 15 January 2008. His case, however, is that the agreement encompassed only the financial terms upon which he would fight Mr Hopkins. His case is that the Claimant and he agreed that the Defendant would receive 80% of the Claimant's share of the profits generated by his bout with Mr Hopkins. No agreement of any kind was concluded in relation to the promotion of any bouts which he might undertake after the fight with Mr Hopkins.
10. By letter dated 17 January 2008 Mr Gareth Williams wrote to Messrs Simons and Warren in the following terms:-

"I write further to our meeting on 15 January 2008, when I was pleased to note that we were able to resolve all outstanding issues in respect of the forthcoming Hopkins fight.

I presume you will want Joe to enter into an agreement with yourselves and if that is the case, then could you please let me have the same. Alternatively, you may be happy to deal with it by way of an exchange of correspondence.

I write merely to confirm the agreement, namely, that you will promote Joe's forthcoming fight in Vegas with Bernard Hopkins in conjunction with Golden Boy, who will be looking after Hopkins' interests.

It has been agreed between yourselves and Golden Boy that profits will be split on a 50:50 basis after a payment of agreed expenses, and it is further agreed that in relation to yourselves and Joe, Joe will receive 80% of the net profit with yourselves retaining 20% for your promotional fee.

I look forward to working with you in the future and would like to thank you for your assistance."

11. That letter was sent by post and email. On the same date Mr Simons replied by email. His reply reads:-

"Thank you for your email, very happy for this to be agreed by this exchange of correspondence.

However for the sake of good order, it should be noted that the 80:20 split of the 50% of the profit as defined under the promotional agreement between sports Network and Golden boy. Trust this makes it clearer."

12. Shortly thereafter an agreement in writing for the promotion of the bout between Mr Hopkins and the Defendant was concluded between Golden Boy and the Claimant.
13. On 19 April 2008 the Defendant fought and defeated Mr Hopkins. Thereafter, in summary, he set about arranging and he did arrange a bout with Roy Jones Jr. on 8 November 2008. The Defendant was again successful.
14. The bout with Roy Jones Jr was promoted by companies under the control of Mr Jones and the Defendant. The co-promoters agreed to take an equal share of the profits generated by the bout.
15. In these proceedings the Claimant alleges that the Defendant broke the terms of the oral agreement concluded on 15 January 2008. It argues that it was entitled to promote the fight with Roy Jones Jr (or any other fight in which the Defendant engaged) and it argues that it is entitled to promote any further fight in which the Defendant may engage. It claims damages for breach of contract. The Defendant denies breach of contract. Further he pursues a counterclaim. By his counterclaim he sues for sums which he claims are due and owing to him from the Claimant in respect of the bout with Mr Hopkins.
16. The Claimant does not dispute that a substantial sum of money is owed by the Claimant to the Defendant in respect of the bout with Mr Hopkins although it does dispute that the sum owed is as large as alleged by the Defendant. It justifies its non-payment, however, on the basis that it is entitled to set-off against the sum owed the damages to which it claims to be entitled for breach of contract.
17. In their respective closing submissions Mr Thwaites QC and Mr Mill QC mounted sustained attacks upon the credibility of the principal witnesses called before me. For the avoidance of doubt I here refer to Mr Warren, Mr Simons, the Defendant, his father and Mr. Gareth Williams. That is hardly surprising. These are the five men who were involved in the meeting which took place on 15 January 2008. They cannot all be right about what was said and what occurred as will become apparent.
18. In the light of the evidence given and the submissions made upon the evidence by counsel I have formed the clear view that I should treat the evidence of each of these witnesses with caution. I say now that there are aspects of the evidence given by each of these persons which has caused me to reflect long and hard upon their credibility, accuracy and reliability. When judging which parts of their evidence on important matters I accept or reject, I have looked for supporting evidence, particularly supporting documentary evidence where that exists. Further, I have sought to test the evidence of the principal witnesses by reference to the probabilities as I see them.
19. During the course of the evidence given by Mr Warren and the Defendant, in particular, disputes arose about the nature of their relationship over the period of 12 years during which it subsisted. It is impossible to resolve such disputes in the context of a case such as the present. For example, it is impossible for me to judge with any degree of accuracy to what extent Mr Warren hindered the career of the Defendant to serve his own ends (if he did at all) or to what extent Mr. Warren sought to control the Defendant unnecessarily and to his detriment (if at all). In this judgment, therefore, I will resolve factual disputes only in so far as it is necessary to resolve the primary factual dispute which arises namely as to the terms of the oral agreement concluded on 15 January 2008.
20. I begin my search for the material necessary to the resolution of this issue by detailing what was, in effect, agreed evidence about how Mr Warren, the Claimant and the Defendant reached binding agreements in the years during which they were associated.

Contractual Arrangements 1997- 2007

21. Mr Warren alleges and the Defendant does not dispute that Mr Warren began to manage the Defendant in January 1997. There is no agreement in writing to that effect. The first agreement in writing between Mr Warren and the Defendant under which Mr Warren managed the Defendant was made on 25 January 1999. The agreement was concluded upon a standard form contract issued by British Boxing Board of Control Limited (BBBC). It named Mr Warren as the manager and the Defendant as the boxer and it specified that the agreement should subsist for a period of 3 years. In defined circumstances, however, it was possible to extend the agreement (see clause 12).
22. On 25 January 2002 the Defendant and Mr Warren signed a further management agreement upon the standard terms of the BBBC. On this occasion the duration of the agreement was expressed to be 2 years. On January 2004 a third management agreement was signed by Mr Warren and the Defendant. Again, it was upon BBBC standard terms and the period of the agreement was specified as 1 year. On 21 October 2004 Mr Warren and the Defendant signed a fourth management agreement upon BBBC standard terms. This management agreement was specified to subsist for 2 years. Just before the contract was signed Mr Warren wrote to the Defendant confirming that although he was entitled under the management agreement to deduct "25% management commission" he did not intend to do so where the management commission was in connection with contests promoted by the Claimant – see letter 19 October 2004.
23. On 31 March 2006 Mr Warren wrote to the Defendant informing him that he was invoking his right under the management agreement to extend the duration of the agreement. He specified the date, as extended, for the termination of the agreement as 4 September 2007. The Defendant took no step to object to that course. Accordingly, the extension took effect.
24. In due course the management agreement between Mr Warren and the Defendant expired on 4 September 2007. Upon its expiry the Defendant refused to enter into a further agreement. I will consider the circumstances of that refusal later in this judgment.
25. Mr Warren promoted the Defendant for the first time in a fight on 21 January 1997. So far as I am aware from the documents, however, the first written agreement between Mr Warren and the Defendant in relation to promotion was an agreement made on 22 January 1998. The agreement was entitled "Promoter/Boxer Agreement" and it provided that Mr Warren would promote the Defendant in relation to a series of bouts as specified in clause 2 of the agreement. The series of bouts therein described was upon the assumption that the Defendant would win each of the bouts. That emerges from the clause 3 of the agreement which provided that the agreement could be terminated at Mr Warren's discretion in the event that the Defendant was defeated in any of the bouts.
26. The written agreement of 22 January 1998 contained a number of detailed provisions with which I need not deal in this judgment. However I should record the terms of clause 20:-

"The parties hereto acknowledge that this agreement has been entered into with the benefit in each case of independent legal advice and reflects what the Promoter and the Boxer believe to be a reasonable and amicable Agreement."

27. There is no indication in the documentary evidence that the Defendant took any legal advice about this agreement notwithstanding clause 20. It is clear, however, that the Defendant did take legal advice before entering into the next "Promoter/Boxer Agreement". The documents show that on 9 June 2000 one Dennis Gilmartin faxed a copy of a proposed promotional agreement between Mr Warren and the Defendant to a solicitor in the firm of Watkins & Gunn. The solicitor in question was Mr Jonathan Wellington who was a partner in the firm. The proposed agreement provided for Mr Warren to promote or co-promote the Defendant in respect of a series of 4 bouts. There was, again, provision for termination of the agreement at Mr Warren's discretion should the Defendant be defeated.
28. On 15 June 2000 Mr Wellington wrote to Mr Gilmartin raising a number of issues upon the terms of the agreement. There followed an exchange of correspondence between Mr Wellington and an in-house solicitor by the name of Healy. The exchange culminated in the Defendant's signing an agreement which was expressed to be made on 18 July 2000. The agreement signed provided for 5 bouts to be promoted by Mr Warren. It also had identical terms as to termination and the taking of legal advice as the first agreement.
29. By the time this agreement was signed the Defendant was WBO Super-Middleweight Champion. By the agreement of 18 July 2000 he agreed with Mr Warren that the first in the series of 5 bouts would be a defence of his world championship title. The agreement, however, did not identify the person who would challenge for the title.
30. A third "Promoter/Boxer Agreement" was produced in July 2001. On or about 3 July 2001 Mr Warren signed an agreement apparently made between the Defendant and himself. This agreement provided for the promotion of 6 bouts; it also had identical terms as to termination and the taking of legal advice.
31. The copy of the agreement included within Trial Bundle C(1) is not signed by the Defendant. Indeed no signed copy of this agreement was produced in the course of the proceedings. There is no clear evidence that the Defendant signed this agreement. Nonetheless it is common ground that the agreement was produced to the Defendant by or on behalf of Mr Warren and that after 3 July 2001 Mr Warren and the Defendant conducted themselves as if bound by the agreement and in accordance with its terms.
32. The next promotional agreement was signed by the Defendant. It was an agreement made and entered into on 8 October 2004 between the Claimant and the Defendant. A draft of this agreement had first been sent to the Claimant's father in mid-May 2004. Some negotiation of its terms took place. Ultimately, as I have said, the agreement was signed on 8 October 2004.
33. This agreement was somewhat different in its format and terminology from earlier agreements concluded between Mr Warren and the Defendant. Clause 2 was in the following terms:-

"This agreement shall commence on 8 October 2004 and shall continue until the Boxer has taken part in four further defences of the WBO World Super-Middleweight Title or the Agreement term has otherwise been extended or varied by the parties. The Promoter agrees to arrange the four defences of the Title within 18 months of the commencement of this Agreement."

Clause 4 provided that:-

"During the term of this Agreement the Promoter shall endeavours to secure the Boxer a contest for another World Title….".

34. This Agreement contained terms which might be regarded as onerous so far as the Defendant was concerned. For example Clause 10 was in the following terms:-

"The Boxer acknowledges that his services as a professional boxer are special, unique, extraordinary, irreplaceable and of peculiar value, and that in the event of the Boxer's breach or threatened breach of this Agreement, Promoter would suffer irreparable damage which could not reasonably or adequately be compensated by an action at law. Accordingly, the Boxer expressly agrees that in the event of such breach or threatened breach, Promoter shall be entitled, in addition to all other rights and remedies available to it, to obtain equitable relief, including but not limited to an injunction against such breach in any court of competent jurisdiction, and that The Boxer will not assert as a defence in any such action that Promoter has an adequate remedy of law."

Clause 34 provided:-

"The Boxer will not retire during this contract except with the agreement of the Promoter in writing. If the Boxer does retire then he will not at any later date participate in a professional boxing contest without notifying the Promoter in writing of his intention to resume his boxing career. Thereafter, the Boxer will not participate in boxing contests for a period of three years except with the written permission of the Promoter."

35. As I have said a draft of this agreement was sent to the Defendant's father in mid-May 2004. The Claimant sought to argue, through Mr Thwaites QC, that the Defendant took legal advice upon its contents. It did so because of a letter dated 30 July 2004 from a firm of Solicitors called Hugh James to Mr Stephen Heath, then an in-house lawyer employed by the Claimant. The letter was short and to the point. It said:-

"We acknowledge safe receipt of your fax with attached boxing promotional agreement and thank you for the same."

There is no documentary evidence as to why the agreement was sent to Messrs Hugh James. The Defendant, in evidence, asserted that the agreement was not sent to the solicitors so that he could receive advice upon the contents of the document. Rather it was sent to the solicitors because they were then acting for him in divorce proceedings and the agreement contained information about the purses that would be paid to the Defendant in respect of the bouts specified in the agreement.

36. I accept the Defendant's evidence about this issue. It seems to me to be highly unlikely that a very detailed agreement containing terms which, to repeat, might be considered onerous so far as the Defendant was concerned would generate not one comment on the part of solicitors had their instruction related to considering the terms of the agreement.
37. Following the conclusion of this agreement the Claimant promoted two fights for the Defendant with boxers known as Kabary Salem and Evans Ashira. The bout with Evans Ashira took place on 10 September 2005.
38. On 4 March 2006 the Defendant fought a man called Jeff Lacy. As I understand it this was to be the last fight which was covered by the terms of the agreement concluded on 8 October 2004.
39. In December 2005 the Claimant produced drafts of what purported to be a variation of the terms of the agreement of 8 October 2004. One draft is dated 5 December 2005 and, apparently it was intended that it would be delivered to the Defendant by hand. A second draft, dated 7 December 2005 was apparently intended to be sent to the Defendant by recorded delivery.
40. On 20 February 2006 what was, in effect, a third draft was apparently sent to the Defendant by posting it to the home address of his father. In all material respects each draft was the same save that the draft of 20 February 2006 contained an express provision to the effect that Mr. Warren would not be paid a management fee in respect of bouts promoted by the Claimant. (This term reflected a handwritten memorandum on the draft of 5 December 2005). On 21 February 2006 Mr Lyndon Roberts, a lawyer employed by the Claimant wrote in the following terms to the Defendant's father, Mr Enzo Calzaghe.

"Re: Commercial Terms for Joe Calzaghe v Jeff Lacey, 4 March 2005 ("Bout")

Further to our various discussions, please find attached an amended version of the letter sent to you dated 6 December 2005.

You will find that a clause has been added to clarify that no management commission will be deducted from Joe's purse for the aforementioned Bout.

In addition, you will also find that Clause 7(ii) of Joe's existing Promotional Agreement dated 8 October 2004 (copy page attached) sets out in very clear terms, each party's position in the unlikely event that Joe loses. Accordingly, Clauses 6 and 7 of the attached letter merely repeats that which has already been agreed.

In order to ensure that any outstanding matters are clarified without any further delay, please call Frank with any comments that you may have."

The "amended version" referred to in Mr Robert's letter of 21 February 2006 was not produced in evidence. Indeed, as I understand it, no document signed by the Defendant and on behalf of the Claimant could be found by the parties. In his oral evidence the Defendant was reasonably sure that he had signed an agreement essentially in accordance with the draft to which I have referred (as amended) but, to repeat, no document signed by either party was actually produced.

41. The salient terms as set out in the various drafts were very important to both parties. They were as follows:-

"Further to our recent conversation on the above, I can now confirm the terms of the Exclusive Promotional Agreement dated 8 October 2004 with Sports Network Ltd shall be varied as follows:

1. You shall receive £800,000…… for your participation in the Bout ("Purse")

2. In addition to the Purse, you shall also receive £75,000 …. worth of tickets….

3. In the event that you stop Jeff Lacy during the course of the Bout by knock or technical knock out ….. you shall receive a bonus of £50,000

4. For your next fight you shall receive:

(i) £800,000 for a non unification fight or;

(ii) to be negotiated, in good faith, not less than £1 million for a unification fight.

5. ……….

6. ……….

7. You agree to be exclusively promoted by Sports Network Limited for a period of three further contests after the Bout.

8. For the avoidance of any doubt, when you participate in a Sports Network promotion, no management fee will be deducted from your Purse by me. A management fee will only be deducted when you participate in a promotion not promoted by Sports Network."

42. The drafts produced in December 2005 were not signed. The draft apparently sent to the Defendant at his father's address was signed by Mr Warren. To repeat, the agreement sent to the Defendant's father under cover of Mr Roberts' letter dated 21 February 2006 was not produced in evidence.
43. I have reached the conclusion, on the balance of probabilities, that a document signed by both parties did, at one time, exist. However, it matters not since the parties agree that they acted in accordance with the terms of the draft which was ultimately produced on or about 21 February 2006. The Defendant fought three opponents; they were Sakio Bika, Peter Manfredo and Mikkel Kessler. The fight with Mr Kessler was the last of the three bouts referred to in the agreement concluded in February 2006.
44. As is obvious from the preceding paragraphs Mr Warren and then the Claimant clearly intended that agreements he or it reached with the Defendant for the promotion of fights undertaken by the Defendant should be reduced into writing. There was not one occasion when the Defendant fought between 22 January 1998 and 3 November 2007 when a written promotional agreement was not in existence in the sense that it was either signed by both parties or acted upon and treated as being binding by both parties.
45. The last bout covered by the written agreement of 8 October 2004 (as varied) was the fight with Mikkel Kessler. I have no doubt that Mr Warren was aware that the Defendant would become a free agent after that fight unless an agreement was concluded for further promotions. Equally, in my judgment, the Defendant knew full well that the fight with Mikkel Kessler was the last fight covered by the promotional agreement of 8 October 2004 and that thereafter, he would be free to make other arrangements for the promotion of his fights. It is against that background that I turn to the next section of my judgment which deals with the negotiations which preceded the fight with Mikkel Kessler.

Discussions and Negotiations between the summer of 2007 and 3 November 2007

46. The first face to face negotiations about the terms upon which the Defendant would fight Mr. Kessler took place in the Landmark Hotel in London. It is common ground that in July 2007 Mr Warren, Mr Simons, the Defendant and his father met at that hotel to discuss terms. Before dealing, in some detail, with what was discussed at the meeting I should record that Mr Warren said in his witness statement that he had discussed terms with the Defendant at some time before the meeting. According to Mr. Warren, in this discussion the Defendant asserted that he wished to be paid £2,500,000 for his fight with Mr Kessler and that on that basis he was happy to continue to be promoted by the Claimant although he also mentioned that he wished to manage himself. Mr Warren's evidence, in summary, as to the meeting at the Landmark Hotel was as follows. The Defendant appeared adamant that he wanted to be paid £2,500,000. A negotiation ensued and the Defendant apparently suggested that he would take £2,350,000 but indicated that this was his "bottom line". After discussion between Mr Warren and Mr Simons, the Defendant was offered £2,200,000 together with tickets with a face value of £150,000 and, asserts Mr Warren, the Defendant agreed those terms.
47. Mr Simons' account of the meeting at the Landmark Hotel was in similar terms. In his witness statement Mr Simons said (paragraph 13):-

"………….going into that meeting, Joe had agreed to be promoted by us for one more fight and the only issue was his purse."

It seems that this understanding was based upon what Mr Simons was told by Mr Warren. Nowhere in his witness statement does Mr Simons assert that he had had face to face or telephone discussions with the Defendant in which the Defendant had agreed to be promoted by the Claimant for one more fight.

48. According to both Mr Warren and Mr Simons the need for an agreement to promote at least one more fight arose from the Defendant's wish to be paid £2,500,000. Such a purse could only be contemplated if a very substantial sum was to be agreed with a television company for the broadcast of the fight with Mr Kessler. ITV was prepared to pay £800,000 for the fight with Mikkel Kessler. However a company called Setanta was prepared to offer £2,500,000 provided it could broadcast both the fight with Mr Kessler and the next fight in which the Defendant would be engaged. According to Mr Warren and Mr Simons the Defendant was fully aware of the position with Setanta both before and at the time of the meeting at the Landmark Hotel.
49. The Defendant denies that he was aware of the proposed agreement with Setanta either before or at the time of the meeting at the Landmark Hotel. Further he denies that there was any discussion either before or at the meeting about whether the Claimant would promote him for his next fight after Mr Kessler. The Defendant's evidence was that these things were simply not discussed. Mr Enzo Calzaghe gave no evidence about this aspect of the case. If I am wrong in that bare assertion, the evidence he did give was very limited.
50. What do the documents show? There are documents which show that in April 2007 the Claimant, through Mr Warren and Mr Kessler's manager, Mr Mogens Palle engaged in negotiations over the proposed fight. On 17 May 2007 ITV made an offer in writing to the Claimant in which it offered to pay the Claimant £2,550,000 for six professional boxing events over a 12 month period. The offer appeared to specify that one of those events was to be an event featuring the Defendant and a well-known boxer, Mr Amir Khan, for which the fee would be £800,000. The offer provoked a response from Mr Warren which suggested that it was laughable. In June 2007 there was further correspondence between the Claimant and Mr Palle. On 12 July 2007 an agreement in writing was concluded between the Claimant and Setanta. The agreement was expressed to be for the exclusive rights to two events involving the Defendant although it also covered other bouts involving other boxers. Event 1 was expressed to be an event in October/November 2007 relating to a fight between the Defendant and Mr Kessler with another boxer (Enzo Maccarinelli) on the undercard. The second event was an event to take place in 2008 involving a fight between the Defendant and an unnamed fighter. In respect of the first event Setanta agreed to pay £1,500,000. In respect of the second event the payment was agreed at £1,000,000.
51. On 2 August 2007 Mr Tony Vincent, the Claimant's box office manager, wrote to the Defendant's father in relation to a ticket allocation for the fight with Mr Kessler.
52. So far as I am aware no documents came to existence in July or August relating to the agreement allegedly made at the Landmark Hotel. However, on or about 17 September 2007 a draft letter was generated by Mr Lyndon Roberts. It was in the following terms:-

"Dear Joe,

Further to the meeting held at the Landmark Hotel between yourself, Enzo, Ed and I, I write to confirm the agreement reached between You and Sports Network Limited with regard to your fight against Mikkel Kessler.

1. The Event

A 12 round contest for the unified Super MiddleWeight World Championship for the WBC, WBA and WBO on Saturday 3 November and Sunday 4 November 2007.

2. Purse

Your purse shall be £2,200,000 gross purse, which shall be paid less deductions for British Boxing Board of Control tax and the boxing organisation's sanction fees as follows:

(a) £1,000,000 no later than 6 weeks after the Bout

(b) The balance no later than 8 weeks after the Bout.

3. You agree to be exclusively promoted and managed by me for a further period of 12 months following the Kessler fight.

4. In the absence of any conflict the terms of your previous agreement dated 8 October 2004 shall apply as if attached.

5. All purses for future fights shall be negotiated in good faith."

There was then a space for the signatures of the Defendant and Mr Warren and then the draft continued:-

"I also attach herewith, your new Management Agreement and I would be grateful if you would sign both documents and return to me for counter signature."

53. There is written upon this draft the words "OK Send". None of the witnesses, called on behalf of the Claimant, was able to identify who had written those words.
54. It has never been suggested that Mr Roberts was a party to the discussions at the Landmark Hotel. Accordingly it follows that this draft must have been produced after he had discussed what had occurred at the Landmark Hotel with either Mr Warren or Mr Simons or both.
55. Clause 3 in the draft does not accord with what Mr Warren or Mr Simons say was agreed at the Landmark. Mr Simons' evidence was clear. The agreement was for the promotion of one further bout. Mr Warren's witness statement could read as if the Defendant had agreed to be promoted for all future bouts but, on any view, it does not suggest that the agreement for future promotions was for a time period of 12 months. The draft differs from the alleged agreement at the Landmark in two further respects. It contains no reference to the Defendant receiving tickets to a value of £150,000; it does refer to a new management agreement although it is not suggested that the Defendant agreed that at the Landmark.
56. Mr Warren, Mr Simons and Mr Roberts could not explain satisfactorily how the draft came to be so different from what was allegedly agreed at the Landmark. Further, none of those men could explain why the draft was not converted into a letter and sent to the Defendant given the words "OK Send" upon it. It was however, common ground that it was not sent.
57. On 27 September 2007 a letter in identical terms to the draft was generated except that the word draft was removed and the Defendant's address added to the letter. The Defendant told me that he did not receive that letter and the witnesses called on behalf of the Claimant did not suggest otherwise or indeed that it was sent.
58. On 29 October 2007 a further letter was created. This letter was apparently to be sent by hand since the words "BY HAND" appear on the face of the letter. Further, the introduction to the letter had been changed so that reference to a meeting at the Landmark was excluded and, instead, the words "Further to our last meeting" introduced the letter.
59. The Trial Bundle C(1) contains what appears to be the Claimant's copy of this letter and also a copy of the letter which must have been received by the Defendant. On the copy of the letter sent to the Defendant there are a number of manuscript alterations made both by Mr Simons and Mr Warren. Clause 3 is amended so that it reads:

"You agree to be exclusively promoted by me for a further fight after the bout."

There is also a hand written addition which makes it clear that interest is to be payable on the sums specified in clause 2 in the event that the sums are paid after the date specified in the clause.

60. It is common ground that the alterations on this document came about because of a meeting which took place between Mr Warren and the Defendant on 1 November 2007. The Defendant's evidence is that it was then and only then that he knew of the suggestion that he should be promoted by the Claimant beyond the fight with Mr Kessler and his evidence was that he agreed the provision for "a further fight" because he felt that he had no alternative. However, he also asserts that it was at this meeting that he made it clear that he no longer wished to be managed by Mr Warren and it was this which caused the deletion of the words "and managed" from clause 3.
61. On 2 November 2007 the Defendant and Mr Warren signed a document which reflected the terms which had been agreed on 1 November 2007. This document, however, contained the following addition beneath the signatures of the two men.

"For the purposes of sanctioning fees Sports Network will disclose to each of the governing bodies that you have received one million pounds only".

Those words were written by Mr Lyndon Roberts. It is he who had produced the final document to the Defendant for his signature. Mr Roberts' evidence, which I accept, was that the Defendant suggested the addition of those words. Mr Roberts also said that the Defendant did not sign the document until the words had been added although I am less clear about whether that is correct. I say that for this reason. I have no doubt that Mr Roberts would not have written those words upon that document unless expressly sanctioned to do so by Mr Warren or Mr Simons. Quite what the sequence of events was, in those circumstances, is, in my judgment, impossible to discern.

62. The words written upon the document by Mr Roberts reflect no credit on the Claimant or the Defendant. The words were intended to deceive the relevant governing bodies as to the true amount of the remuneration received by the Defendant in respect of his fight with Mr Kessler. The words had the effect of reducing the Defendant's liability for sanctioning fees. He wished to avoid paying a proportion of the correct fees and the Claimant and one or more of its senior officers or employees were complicit in the deception.
63. In my judgment the probability is that the agreement to be promoted for one bout beyond the fight with Mr Kessler was not concluded until 1 November 2007. I say that, principally, because the evidence given on behalf of the Claimant as to the evolution of the document which finally constituted that agreement was so unsatisfactory. There is, after all, no inherent probability about that agreement being reached at the Landmark Hotel. However, if such an agreement had been reached it is very difficult to see how or why it could have been reduced into writing as an agreement which allowed the Claimant to promote the Defendant for a fixed period of twelve months.
64. Further, as the next section of my judgment will demonstrate, I am satisfied that the Defendant was disillusioned with the Claimant in the weeks following his fight with Mr Kessler. That state is consistent with the issue of further promotions being presented to him two days, or thereabouts, before the fight with Mr Kessler.
65. A significant part of the cross-examination of both Mr. Warren and the Defendant was taken up with the issue of whether or not the Defendant was pressurised into signing the agreement or whether he was in a proper state to deal with the agreement given the proximity of the fight.
66. I reject the suggestion that the Defendant's condition pre-fight was such that he could not properly deal with the agreement. The changes which were made to the document demonstrate quite clearly that the Defendant understood its terms. I do accept, however, that it is likely that the Defendant did feel under some pressure to conclude the agreement given the proximity of its presentation to him with such an important fight.
67. I also accept that it is more likely than not that the continued management of the Defendant by Mr. Warren surfaced for the first time in clear form in November. Why else did all the drafts until that date refer to a new management agreement?
68. It seems to me, however, that the true significance of the course of negotiations over the fight with Mr Kessler lies not in whether an agreement for one more promotion was reached in July or in November. The true significance is that the agreement was for one more promotion only and that it was reduced into writing and signed by the parties. By November 2007 the Defendant had become a boxer who was capable of generating very substantial amounts of money when he fought. The Claimant recognised that and so did the Defendant. It is clear, in my judgment, that by November 2007 each was acutely aware of the potential sums involved whenever the Defendant fought.

4 November 2007 to early January 2008

69. Following his success in the fight with Mr Kessler consideration soon turned to the Defendant's next bout. As I said in the introduction to this judgment the Defendant's opponent of choice was Bernard Hopkins. In his witness statement Mr Warren accepted that it was soon agreed between the Defendant and himself that the Defendant's next opponent would be Bernard Hopkins but he also told me that he was keeping open the possibility that the Defendant would fight either Clinton Woods or Kelly Pavlik. In any event, says Mr Warren, he soon entered into discussions with Richard Schaefer. Mr Schaefer is the Chief Executive Officer of Golden Boy. Although Mr Schaefer signed a witness statement in these proceedings and, apparently, was to be called on behalf of the Defendant, he did not appear to give evidence.
70. I have no reason to doubt that Mr Warren opened negotiations with Mr Schaefer. Golden Boy promoted Mr Hopkins. On any view Mr Hopkins was a possible opponent for the Defendant. The Claimant was entitled to promote the Defendant's next fight and, in consequence, it seems inescapable that he would have begun discussions with Mr Schaefer.
71. It is against this background that it is necessary to consider the staged confrontation which took place between Bernard Hopkins and the Defendant in Las Vegas. A boxer by the name of Ricky Hatton was due to fight an American boxer, Floyd Mayweather, on 10 December 2007 in Las Vegas. The Defendant travelled to Las Vegas to watch that fight but, also, according to him, with a view to meeting Bernard Hopkins and provoking him, if necessary, into participating in a fight with the Defendant. On 7 December 2007 a press conference took place in advance of the bout between Messers Hatton and Mayweather. Mr Hopkins and the Defendant were present at the press conference. The details of what transpired between them, in the main, are unimportant although highly entertaining.
72. Both Mr Warren and Mr Simons said that in the course of the confrontation which occurred between the Defendant and Mr Hopkins the Defendant offered to fight him on a 50/50 basis. They assert that the making of this offer prejudiced the negotiations between the Claimant and Golden Boy for the promotion of the bout. According to them it became impossible for the Claimant to negotiate a more advantageous split of the profits to be generated by the bout.
73. I have grave doubts about whether the Defendant did offer to fight Mr Hopkins on a 50/50 basis. I am prepared to accept that the Defendant did use the words "50/50" (indeed no one, including the Defendant himself, has any real doubt on the point). However it seems to me that the context in which he spoke the words is much more likely to be about a description of a bout which Mr Hopkins had fought and lost. In the course of thrust and counter thrust about that bout the Defendant was prepared to accept that he had said that the bout had been a 50/50 fight i.e. very close.
74. Whatever the true position may be as to what was said and why I simply do not understand how words spoken in this press conference could be thought to be binding upon the Claimant and Golden Boy. It was they who were promoting the fight; it was for them to agree how the profits of the fight should be split. In my judgment no one could seriously suggest that the excitable words of the Defendant and Mr Hopkins during the course of the press conference could, conceivably, be binding upon their promoters. I have no doubt that the performances of Mr Hopkins and the Defendant helped to persuade onlookers that they wished to fight each other but, to repeat, it seems to me to be unreal to suggest that what was said committed the promoters of each boxer to split the profits of the fight on a 50/50 basis. In his witness statement the Defendant described what was said at the press conference between Mr Hopkins and himself as "just two boxers 'mouthing off' at each other". In my judgment that is an accurate description of what occurred.
75. Some days after the fight between Mr Hatton and Mr Mayweather Mr Warren, Mr Simons, the Defendant and his father met at the Celtic Manor Hotel in South Wales. They did so for the express purpose of agreeing what the Defendant would be paid for the fight with Mr Hopkins. Mr Warren and Mr Simons say that Mr Warren expressed his disquiet about the fact that the Defendant had apparently agreed to fight on a 50/50 basis. In the light of my previous conclusion I reject that part of their evidence. What is clear, however, is that no progress was made at the meeting towards reaching agreement as to the payment which the Defendant should receive for his fight with Mr Hopkins. It is common ground that the Defendant raised, for the very first time in his relationship with Mr Warren or the Claimant, the prospect that he wished to be paid a share of the profits payable to the Claimant. It is also common ground that Mr Warren did not resist the Defendant's suggestion in principle. The debate was about how much of the profits the Defendant should take.
76. The Defendant's evidence was that Mr Warren suggested that he, the Defendant, should take 75% of the Claimant's share of the profits. According to the Defendant Mr. Warren justified that split on the basis that a manager would receive 25%.
77. The Defendant was not prepared to accept 75% of the Claimant's share of the profit. He told me that it irked him that Mr Warren had made an analogy with the position of a manager. Essentially, according to the Defendant he lost interest at this point in the meeting.
78. There is a dispute about whether the manager analogy was made by Mr Warren. I am quite prepared to accept that it may have been made since I have no doubt that Mr Warren would use all the arguments which he felt to be at his disposal so as to ensure what he felt was a fair share of profit for the Claimant.
79. In my judgment, however, the significance of this meeting is not whether Mr Warren irked the Defendant with his manager analogy. Its significance lies in the fact that the Defendant refused to accept the Claimant's offer. In my judgment his refusal is a clear indicator that by this stage he was adopting a much harder attitude in his negotiations with Mr Warren than he had displayed over many previous years.
80. The meeting ended without agreement. Shortly thereafter the Defendant instructed Mr Gareth Williams to act for him.
81. The choice of Mr Williams, in my judgment, speaks volumes about the attitude of the Defendant in relation to the Claimant and Mr. Warren. At the time Mr Williams was a solicitor practising in Manchester. He was a partner in the firm known as George Davis Solicitors LLP. There was no obvious connection between a solicitor based in Manchester and a boxer who lived in South Wales save for this. By December 2007 the Defendant knew that Mr Williams had acted for Mr Ricky Hatton in a previous acrimonious dispute which resulted in equally acrimonious litigation between Mr Hatton and the Claimant/Mr Warren. The Defendant believed that Mr Williams had been instrumental in achieving a very good outcome for Mr Hatton in that litigation. It seems to me that the Defendant's instruction of Mr Williams is explicable only on the basis that he knew that he was heading for disagreement with Mr Warren over the terms upon which he would fight Mr Hopkins and he wished to have the support of a solicitor who had, so he believed, successfully stood his ground against Mr Warren on behalf of Mr Hatton.
82. There is a further piece of evidence which demonstrates that the Defendant had become disillusioned with the Claimant and Mr Warren. On 22 November 2007 the Defendant faxed a copy of the letter which Mr Warren and he had signed on 2 November 2007 to a lawyer based in the Republic of Ireland, Mr Paul Tweed. On the faxed copy of the letter the Defendant wrote:-

"COHERSED INTO SIGNING."

The Defendant wished to know whether grounds existed upon which he could avoid the consequences of the agreement constituted by the letter.

83. In my judgment this action on the part of the Defendant demonstrates his state of mind after the fight with Mr Kessler. Although, as I have indicated, the Defendant is capable of unacceptable conduct when its suits him he is not, in my judgment, the sort of person who can send a document to a lawyer as a means of creating a false impression and so as to lay the ground, evidentially, for a position to be taken in a dispute which had not yet materialised.
84. Following the failed discussions at the Celtic Manor Mr Simons tried to arrange a further meeting with the Defendant to discuss his purse. He said that both Mr Warren and he tried to contact the Defendant and his father on numerous occasions by telephone but their calls were not answered. In paragraph 31 of his witness statement Mr Simons said that on Saturday 22 December 2007 he did receive a telephone call from the Defendant. It was in that call that the Defendant told Mr Simons that he had instructed Mr Williams. In the same paragraph of his witness statement Mr Simons said that he was surprised by the instruction of Mr Williams not least because he knew that Mr Williams and the Claimant did not have a good relationship. On that same Saturday Mr Simons told Mr Warren. Mr Warren's witness statement reads:-

"48……… He told me that he had just received a call from Joe and that Joe had retained Gareth Williams, a solicitor I have come across before. It was not uncommon for Joe to have his own solicitor involved to finalise agreements, but we normally negotiated the commercial terms between ourselves. I called Joe to check this and remember saying that there must be 10,000 solicitors so why did he have to choose Gareth Williams.

49. I was not happy with Joe instructing Gareth Williams, and although now we get along fine, we did not at the time."

Mr Warren then said that he received a number of texts from the Defendant's father in which the Defendant's father made it clear that he was upset by the instruction of Mr Gareth Williams.

85. It is common ground that a telephone conversation took place some time thereafter between Mr Simons and Mr Gareth Williams. The telephone conversation occurred so that a face to face meeting could be arranged.
86. The evidence of Mr Simons was that this was a short telephone conversation which was conducted amicably. The upshot was that a meeting was arranged for 15 January 2008. Mr Williams' version of this conversation is set out in his witness statement at paragraph 15. It is important that I quote, substantially, from that paragraph.

"15…………..During the course of one of these conversations, Mr Simons confirmed that Mr Warren wanted a 25% share for co-promoting the Hopkins fight. I told Mr Simons that that there was no prospect of Mr Calzaghe agreeing to this. Mr Simons said that Sports Network would not agree to anything less. I said to him 'there is an easy or a hard way to do this'. By this I was suggesting that Mr Calzaghe could challenge the enforceability of the promotional agreement for the Hopkins fight. Mr Simons asked me what I meant. I said, unless they were prepared to agree reasonable terms, Mr Calzaghe would go direct to Golden Boy Promotions, the promoter who represented Mr Hopkins. Mr Simons then said that Mr Calzaghe had a contract with Sports Network. I told him that I thought this was a worthless bit of a paper, given the way in which Mr Calzaghe had been forced to sign it. I made it clear that Mr Calzaghe would go down this route (i.e. challenge the enforceability of this contract) if he was forced to do so. Mr Simons queried whether this was coming from Mr Calzaghe himself. I was keen to avoid any suggestion that I was doing anything other than simply acting on my client's instructions. I did not want Sports Network to think that I was pursuing the same course as in relation to Mr Hatton's dispute on the basis that this was my agenda rather than my client's. I therefore suggested that we should all meet so that they could hear from Mr Calzaghe himself how he felt."

87. Mr Simons disputed that a conversation along these lines took place at all. In my judgment, however, the likelihood is that it did. I say that for two reasons. First, and principally, parts of this conversation do not put Mr Williams in a good light. As Mr Thwaites QC submits Mr Williams was making extravagant claims about the enforceability of the agreement between the Claimant and the Defendant. When Mr Williams was questioned about it by Mr Thwaites QC it was clear that the basis for making those assertions was comparatively limited. Why would Mr Williams assert that he had behaved in this manner unless it was true? Second, Mr Williams struck me as being the sort of negotiator who thought it important to take the initiative. I have little doubt that Mr Williams wanted to impress upon Mr Simons that the Defendant was resolute in his views.
88. So it was, in my judgment, that the battle lines were drawn in advance of the meeting of 15 January 2008.

Meeting of the 15 January 2008

89. It is, perhaps, surprising that I reach the meeting which is crucial to the resolution of the Claim brought by the Claimant at paragraph 89 of this judgment. However, I hope the reason is clear. What occurred at the meeting cannot be divorced from what had transpired previously over many years. Indeed, it is very important that the parties' competing contentions about what was agreed must be judged against that context.
90. It is common ground that the meeting took place at the offices of a company known as Hamilton International PLC. That company is controlled by Mr. Peter Abbey, a long standing friend and business associate of Mr. Simons. A room, called the board room, was provided in which the meeting could take place.
91. It is not disputed that Mr Gareth Williams made an attendance note in relation to the meeting. His attendance note is attached as Appendix A to this judgment. In paragraph 17 of his witness statement Mr Williams said :-

"I made some hand written notes during the course of the meeting. I also made handwritten notes during a meeting beforehand with Mr Calzaghe and his father, a sub-meeting which the three of us had during the course of the meeting with Mr Warren and Mr Simons and a discussion which I had with Mr Calzaghe and his father thereafter. When I got back to my office in Manchester, I dictated a typed note from my handwritten notes during the course of the next day or so. I then discarded my handwritten notes."

92. Mr Williams was not challenged about this paragraph. In any event, I have no reason to doubt what he says in it. It follows that the attendance note is based upon contemporaneous note-taking and produced within a day or two of the relevant meetings.
93. In the course of his witness statement (paragraph 19) Mr Williams made corrections or modifications to the typed attendance note. He also provided some context for some of the things stated in it. For example, on page 1 in the paragraph beginning "Joe was happy for Warren ……." Mr Williams said that the words "promote him but" were missing between the two words 'to' and 'he' in the first line of that paragraph.
94. The account of the meeting which involved all five men begins on page 1 of the attendance note with the paragraph "In the meeting itself both Frank Warren and Ed Simons made reference to the long standing relationship with the Calzaghes' and the fact that they had been working with Goldenboy to secure the Hopkins fight." The account ends with the paragraph at the bottom of page 2 which begins "It was agreed that I would write to them……."
95. The attendance note records at the bottom of page 1 to the middle of page 2 what was discussed in what I will call the first phase of the meeting. In the middle of page 2, in one paragraph, the attendance note records what the Defendant, his father and Mr Williams discussed at a point in time after Mr Warren and Mr Simons had left the room. In the last two paragraphs the attendance note relates what was discussed after Mr Warren and Mr Simons had returned to the room.
96. Under cross-examination Mr Warren and Mr Simons had no criticisms of the accuracy of the attendance note in so far as it related to the first phase of the meeting save that Mr Warren, in particular, suggested that were some, comparatively unimportant, omissions of what was said. I find no difficulty in accepting that there were omissions in relation to this part of the meeting. Mr Williams did not set out to provide a verbatim account of what occurred and, inevitably, his attendance note reflects what he regarded as the salient features of what was discussed.
97. Obviously, Mr Warren and Mr Simons cannot comment on what was said or what occurred when they left the room. The crucial paragraphs and the ones about which a dispute exists are as follows:-

"We re-commenced the meeting making it plainly clear that we thought 80:20 was more than fair. Again Frank indicated that he wanted 75:25. He went on at great length that he has had a long relationship and has always done the right thing by Joe, also making it clear that he had watched his back and had been through a lot together. In order to try and move matters along I suggested to Frank that I thought 80:20 was fair. Enzo again trying to resolve matters told Frank that on basis that Frank was the best promoter and had always looked after Joe and Joe would always stay with Frank. Frank indicated that he was happy with that. He told Joe that he would always give him the best offer and on that basis Joe shook his hand and the deal was done. GHW made it clear that we had only made an agreement for the next fight. After that we could all sit down and discuss the future.

It was agreed that I would write to them just confirming the 80:20 split. We discussed if we needed a formal Contract or whether it could just be done by way of an exchange of correspondence it was agreed that all parties present that an exchange of correspondence confirming the 80:20 split would be sufficient. Joe asked what this meant and Frank told him that he had now joined the promoting business."

98. Mr Warren and Mr Simons disagree with this version of events. They assert that what happened was as follows. Following their return to the room in which the meeting was taking place it became clear that the parties were heading for an impasse. Consequently, Mr Warren made the suggestion that the Defendant and his father should speak to Mr Warren and Mr Simons in the absence of Mr Williams. Mr Simons went off to ask Mr Abbey whether a room was available for this discussion. Mr Abbey confirmed that such a room was available and, accordingly, the four men left Mr Williams and proceeded to discuss matters between themselves in a separate room. Within minutes, apparently, agreement had been reached. The agreement alleged by the Claimant is that it would pay the Defendant 80% of its share of the profits from the fight with Mr Hopkins and that the Defendant would permit the Claimant to promote all his future fights – also on the basis that he would receive 80% of the Claimant's share of the profits generated by those fights.
99. In his oral evidence in cross-examination Mr Warren described in his own words what was said (and I here quote from the transcript):-

"We went into a separate room and at that stage we hadn't resolved anything. I said to him, "Joe, if you look me in the eye and tell me that ..." - remember at the meeting he had already said about me being the best promoter, etc. and what Enzo said: "Look me in the eye and tell me that we are moving forward together and I'll continue to promote you to the end of your career and we will have a deal". We shook hands and we hugged and came out of the room and went back into the first meeting room."

100. Immediately thereafter the four men returned to the room in which Mr Williams was waiting and told him of the agreement which had been concluded. His reaction, according to Mr Warren and Mr Simons, was to accept it as a concluded agreement. He did not comment upon it; he did not attempt to frustrate it in any way.
101. Mr Williams, the Defendant and his father deny, categorically, that any meeting took place between the four men in a separate room. The Defendant and his father deny, categorically, that an oral agreement was concluded along the lines suggested by the Defendant.
102. If the Claimant's version of events is accurate the behaviour of Mr Gareth Williams is both very surprising and shocking. It is very surprising in that he apparently permitted without demur the Defendant and his father to engage in private discussions with Mr Warren and Mr Simons when the whole purpose of his being at the meeting was to provide support to the Defendant. It is also very surprising in that he received the news of the concluded agreement without complaint even though its terms appeared to contradict, substantially, what the Defendant had set out to achieve. His behaviour is shocking because his attendance note fails to record this crucial agreement. No solicitor, competent or otherwise, could fail to appreciate the significance of what had been agreed. Mr Williams' failure to record such a potentially valuable agreement could only be explained as a deliberate attempt by him to subvert what had been agreed.
103. I turn, therefore, to consider those aspects of the evidence upon which Mr Thwaites QC relies in order to persuade me that Mr Williams did, indeed, engage in this shocking and surprising conduct.
104. I deal first with the criticisms of Mr Williams as a witness. Mr Thwaites QC made a number of criticisms of Mr Williams. I have taken into account all his submissions in reaching a conclusion about Mr Williams but the most serious accusations levelled against him were these. First, it is said that Mr Williams deliberately misled the Court in that he provided information to the Defendant's lawyers about why Mr Schaefer did not appear at Court as a witness and he knew his information was totally inaccurate. Second, it is submitted that Mr Williams, demonstrably, advised the Defendant to mislead Mr Warren about his activities. I deal with each of these criticisms in turn.
105. Mr Schaefer was scheduled to give evidence in this case on Monday 2 March 2009. It was anticipated by Mr Mill QC that he would give evidence during the course of the afternoon as would another witness from the US, Mr Wirt. At 2 O'clock on Monday 2 March 2009 Mr Mill QC addressed the Court as follows (I quote from the transcript):-

"My Lord, your Lordship will recall that there are some witnesses from the US, and my learned friend and I have agreed, subject to your Lordship, to interpose the evidence of Mr. Wirt, who is one of those. My Lord, I should say the position of the other one, Mr. Schaefer, is not entirely clear. You may recall he had a press conference earlier today. He has not been able to make it to court since as a result of continuing obligations flowing from that and, my Lord, we will just have to deal with that as best we can."

Following the conclusion of Mr Wirt's evidence Mr Mill QC said (again a direct quotation from the transcript):-

"My Lord, can I bring your Lordship up-to-date. We have had a message from Mr. Schaefer, and he has said that unfortunately he is too busy with his business and cannot attend today, so we can continue with my client and, for reasons that will be apparent to my Lord, please can we finish with my client today".

Moments later Mr Mill QC made it clear that Mr Schaefer would not be able to give evidence at all.

106. The assertion made by Mr Thwaites QC, which was accepted by Mr Williams, was that it was Mr Williams who had provided this information to the Defendant's lawyers yet, at the time, Mr Williams knew that the real reason why Mr Schaefer had not appeared was because he was disgruntled with the Defendant's lawyers. He had, apparently, been asked to attend a consultation in chambers on 1 March 2009 and, for whatever reason, he had been unable to locate chambers and/or no one was present in chambers when Mr Schaefer arrived.
107. As an officer of the Court Mr Williams clearly knew or should have known that it was his duty to provide accurate information as to why the witness was not attending. It appears that he wished to hide the fact that the witness was behaving somewhat petulantly and, therefore, he gave a false impression as to why the witness was not attending. This reflects badly upon Mr Williams.
108. The second criticism of Mr Williams to which I have referred, if justified, also shows him in a poor light. During the course of this trial, the Defendant, voluntarily, disclosed a number of documents created by Mr Williams. They are contained in Trial Bundle G. On page 15 of the bundle there are four attendance notes made by Mr Williams in relation to conversations he had with four different people one of whom was the Defendant. The attendance note relating to the Defendant is undated. It appears as the third note on a page containing four attendance notes and all the others are dated 11 June.
109. The attendance note of the conversation with the Defendant records, in terms, that Mr Williams advised the Defendant to tell Mr Warren that he hadn't signed a promotional agreement. In fact, the evidence establishes that a company controlled by the Defendant had signed a promotional agreement with an American company to co-promote the fight between the Defendant and Roy Jones Jr. The agreement had been made in May and Mr Williams accepted that if his telephone conversation took place with the Defendant on 11 June he knew that such an agreement had been concluded. He would not accept, however, that his telephone call with the Defendant did take place on 11 June.
110. I have little doubt that Mr Williams is wrong in making that assertion. It seems to me to be highly unlikely that his attendance note of the conversation with the Defendant found its way into a sequence of attendance notes for 11 June and yet this conversation had taken place literally many days earlier. Further, the opening sentence of the attendance note says:-

"I brought Joe up to speed with everything, told him that I have spoken with John Wirt and HBO."

The first two attendance notes on the page were notes of telephone calls with Mr Wirt and Mr Mazourski a lawyer within HBO.

111. I have reached the conclusion that the attendance note does demonstrate that Mr Williams was prepared to advise the Defendant to provide wholly inaccurate information to Mr Warren.
112. These features, inevitably, make me cautious about Mr Williams' evidence as a whole. Nonetheless they fall far short of persuading me that Mr Williams was capable of deliberately creating an attendance note of the meeting of 15 January 2008 which he knew to be false in crucial respects. In my judgment, such conduct would be on a scale which was completely different (and much more serious) than the misconduct proved against Mr Williams.
113. However, that is not the end of the matter. Mr Thwaites QC submits that there is a body of evidence independent of Mr Williams which should compel me to the conclusion that the Claimant's version of what occurred on 15 January 2008 is the one I should accept. It is to this body of evidence that I next turn.
114. As I have said the meeting on 15 January 2008 took place in offices occupied by a company named as Hamilton International PLC. Mr Peter Abbey is the chairman and majority shareholder of that company and he gave evidence before me. Mr Abbey's evidence to me confirmed, in some respects, the account of the meeting given by Mr Warren and Mr Simons. In particular Mr Abbey told me that there did come a point in time when Mr Simons came into an office in which he was working and asked if another room was available for a short period of time so that "they and Joe and Enzo could meet without legal advisors just to try and agree a deal". Mr Abbey said that he made a room available which he identified on a plan which he presented in evidence by the word "Isaac". Mr Abbey also told me that although he did not see the four men go into the room he saw them come out of it. He was unable to say how long the men were in the room but he thought it was for a short period of time and that after they emerged they seemed very pleased and "it was clear that the deal had been done". According to Mr Abbey he asked Mr Warren how it was going and he received the reply "all done".
115. In cross-examination Mr Mill QC did not suggest that Mr Abbey was being deliberately untruthful. His cross-examination was directed to show that his evidence was simply unreliable or inaccurate. For example, Mr Mill QC elicited from Mr Abbey that he was unaware that Mr Lyndon Roberts was in the same building at the time the meeting was in progress. On the face of it that is surprising since Mr Roberts, apparently, was quite openly engaged in drafting legal documents in the reception area of the building at the same time as the meeting was in progress. Mr Abbey also accepted, or at least appeared to accept, that he did not actually see the four men emerge from "Isaac" though that may have been a misunderstanding on his part of the question put to him. I was struck by the fact that anyone leaving the boardroom to go into "Isaac" would be bound to walk near the room which Mr Abbey occupied. Yet, despite the fact that his door was open, he did not see any of the four men leave the boardroom, or perhaps more importantly, walk in the direction of "Isaac" to go into the room.
116. The crucial part of Mr Abbey's evidence, of course, is his assertion that he saw Mr Warren, Mr Simons, the Defendant and his father coming out of "Isaac". Nothing turns on his evidence to the effect that he was told that an agreement had been concluded since, of course, there is no dispute about the fact of an agreement – the dispute is about its terms.
117. Having given the matter considerable thought I am not persuaded that I can accept Mr Abbey's evidence as reliable and accurate in so far as he asserts that he saw four men emerging from "Isaac". It may well be the case that he saw four men in the corridor near "Isaac" but, to repeat, I am not persuaded that his evidence establishes that the four men had gone into and then emerged from Isaac.
118. Mr Thwaites QC next relies upon a conversation which he submits occurred on 26 August 2008 between the Defendant's father and Mr. Warren.
119. An attendance note of the meeting exists. It was made by Mr Lyndon Roberts. The attendance note begins by recording that Mr Roberts was asked by Mr Warren's secretary to join Mr Warren at a meeting he had planned at the Landmark Hotel with a prospective but unnamed boxer. He, Mr Roberts, was informed that this meeting would follow a meeting that Mr Warren was having with Mr Enzo Calzaghe. Mr Roberts was accompanied to the meeting by Mr Simons.
120. According to Mr Roberts' attendance note the meeting between Mr Warren and Mr Calzaghe was in full swing when he arrived. The attendance note, therefore, deals only with that part of the meeting at which Mr Roberts was in attendance. The crucial part of the attendance note is in the following terms:-

"The discussion then moved on to the meeting in Marble Arch in January with Joe and the terms that were agreed for the Bernard Hopkins v Joe Calzaghe fight. When asked by Frank whether a separate meeting took place with Enzo, Joe, Ed and himself, Enzo confirmed that such a meeting did take place and that Joe had agreed that Frank would promote his future fight. Enzo however did make it clear that the actual terms of such an agreement were discussed. In reply Frank stated that the terms were agreed as it would be on the same basis that was agreed for the Hopkins fight. Enzo's focus was on trying to resolve the issues that existed between Frank and Joe and stated that if the monies being held by Sports network were returned then Enzo could see no issue for a working relationship being re-established. Frank in reply made it clear that he had made several attempts to speak with Joe, he had sent Joe several letters and had called Joe on several separate occasions and he had received no reply whatsoever to any of his attempts to find an amicable solution to this dispute. Enzo then replied to this and made it clear that Joe was being extremely stubborn, he was still very young and did not fully appreciate the consequences of his actions. Enzo made it clear that he was trying to act as the peacemaker and bring the two sides together so that the relationship could be re-established. I specifically recall he made it clear that Joe had not signed with a new promoter and that he or his son were not in the business of promoting events. * Despite confirming that a separate meeting had taken place between Frank and Joe at which Ed and Enzo were present, Enzo made it clear that he was not here to deal with this because the issue was part of history and that all he was concerned about was finding a path for the future that would bring the parties together.*"

121. The attendance note contains typographical errors. In due course Mr. Roberts corrected them. He also removed the bold typing in respect of the last section of the note.
122. Mr Enzo Calzaghe vehemently denied saying anything like that which is recorded in the attendance note. He denied that the meeting took place at the Landmark. He told me that it took place in a restaurant. In his words the whole thing was "a set up."
123. I do not accept that Mr Roberts made up this attendance note. The probability is that it is accurate. On its face, therefore, it is a clear admission on the part of the Defendant's father that a separate meeting occurred as alleged by the Claimant and that an agreement of sorts was reached in it. I say of sorts since the natural reading of the attendance note makes it clear that Enzo Calzaghe was asserting that the terms of the agreement as to future fights were not discussed (although that was contradicted by Mr Warren).
124. This conversation took place after the Claimant had started these proceedings. By this time the Defendant and, no doubt, his father knew that the Claimant was alleging that a meeting in the absence of Mr Williams had taken place and that in that meeting an agreement was concluded.
125. The Defendant's father was in a very difficult position in that he enjoyed an ongoing relationship with Mr Warren and the Claimant. The Defendant's father is a trainer of many boxers some of whom are promoted by the Claimant or Mr Warren. Indeed Mr Warren and Enzo Calzaghe jointly managed some boxers and still do. My impression is that Mr Enzo Calzaghe wanted, so far as humanly possible, to avoid a confrontation with Mr Warren and in the presence of Mr Warren and Mr Simons I can quite see how Mr Calzaghe would say things which were intended to please them albeit they might not be true. While, therefore, I am prepared to accept that Mr Calzaghe spoke the words ascribed to him by Mr Roberts I do not accept that I should treat them as a reliable admission that the Defendant's case is fundamentally flawed.
126. I reach that conclusion notwithstanding the fact that Mr Thwaites QC can properly rely upon other aspects of Mr Calzaghe's behaviour, which at first blush, undermines the Defendant's case.
127. During the course of his cross-examination of Mr Calzaghe Mr Thwaites QC put to him the contents of series of text messages which he had sent Mr Warren. I do not intend to deal, in detail, with each text that was put since, many are to the same effect. Put shortly, the texts revealed Mr Calzaghe's split loyalties and his desire to heal the rift which had opened up between Mr Warren and the Defendant particularly after the fight with Mr Hopkins.
128. There is one text, however, which may be considered to be in a somewhat different category. On 12 July 2008 Mr Calzaghe sent a text to Mr Warren in the following terms:-

"Hi Frank just received your letter and its sad to be in the position were in but I know we are both very good fathers and agree we will fight for a friend but die for a son I know you understand a friend your always be enzo."

The text appears to be the response to a letter which was written by Mr Warren to the Defendant on 11 July 2008. I need not detail the terms of the letter. Essentially it consists of criticism of many of the aspects of the promotional agreement which had been concluded for the fight with Roy Jones Jr and the assertion that the Defendant would be "several millions of dollars worse off" even if Mr Warren was only half right in his criticism. There is, however, in addition, the following reference within the letter:-

"6. This is a breach of our agreement and I will not walk away and so whatever you have agreed to pay Golden Boy will just be an additional fee."

129. Mr Thwaites QC seeks to interpret the text as an acknowledgment by Mr Calzaghe that he would lie for his son, the Defendant. He makes that submission on the basis of the use of the phrase "we will fight for a friend but die for a son."
130. In my judgment the text must be seen in its proper context. It was a response to a letter from Mr Warren in which he suggested that the Defendant was embarking on a course which would cost him millions of pounds. The reference to breach of contract was simply one part of the letter. In my judgment Mr Calzaghe's response was simply an acknowledgment that notwithstanding the prospect, as Mr Warren saw it, that the Defendant stood to lose millions of pounds he would remain his loyal supporter. Certainly, in my judgment, it is not possible to read the text as an acknowledgment that Mr Calzaghe was prepared to lie about crucial parts of what occurred on 15 January 2008.
131. In reaching my conclusions about the effect of the evidence of Mr Enzo Calzaghe I have also borne in mind the fact that on more than one occasion, in writing, Mr Williams advised the Defendant not to make an enemy of his father. It is at least possible, as Mr Thwaites QC submits, that this advice was being tendered because Mr Williams knew that Mr Calzaghe was uncomfortable about telling lies about the meeting of 15 January 2008.
132. Mr Williams denied that his advice was tendered in this context. There is no substantial evidential base to suggest that Mr Williams, himself, is being untruthful about this aspect of his involvement with the Defendant and his father.
133. To repeat, I have reached the conclusion that the evidence of Mr Calzaghe and the evidence of his communications with Mr Warren does not lead me to the view that I must set aside the account of the meeting of 15 January 2008 given orally in the witness box by Mr Calzaghe, himself, the Defendant and Mr Williams and, more importantly, categorise Mr Williams' attendance note of that meeting as false. In saying that I do not wish it to be thought that there were not unsatisfactory aspects of Mr Calzaghe's evidence – I have highlighted one such aspect above. He was an excitable witness and one who was difficult to follow. I would find it hard to rely upon his evidence, if it stood alone, about crucial issues in this case. That is not, however, the state of the evidence.
134. The Defendant's evidence was also unsatisfactory in many respects. On any view, he was poor historian. At some stages I wondered whether his lack of recollection was, indeed, a front for a deliberate unwillingness to answer Mr Thwaites' questions. I have concluded, however, that despite significant lapses which, undoubtedly, affect the Defendant's credibility, his evidence, taken as a whole, does not lead me to conclude that he was untruthful about the events of 15 January 2008. The features of the Defendant's evidence which give most cause for concern were highlighted in the closing submissions made by Mr Thwaites QC.
135. Mr Thwaites QC was entitled to stress that the Defendant had been forced to admit telling lies on oath. That came about in this way. I have referred, earlier, to the non-appearance of Mr Schaefer as a witness. Immediately after Mr Mill QC announced that Mr Schaefer was not appearing the Defendant was recalled to continue his evidence under cross-examination. Mr Thwaites QC began this session by asking what appeared to be innocuous questions about whether the Defendant had met Mr Schaefer during the course of the preceding days and, if so, in what circumstances. Those questions elicited from the Defendant a story that he had met Mr Schaefer briefly on the previous Friday night (his evidence was being given on Monday afternoon) in the presence of his girlfriend, his father and his agent. The Defendant gave the clear impression that nothing of any significance was discussed since the meeting, such as it was, was so short. After the conclusion of the Defendant's evidence on Monday 2 March 2009 the Court adjourned. First thing on Tuesday 3 March 2009 Mr Mill QC asked that the Defendant should be recalled so that he could correct evidence which he had given previously. It then emerged that the Defendant had been in Mr Schaefer's company on the Thursday evening (nothing turns on that) but that he had been accompanied by his solicitor and Mr Williams as well as the other people previously mentioned. Further the meeting had lasted, on the Defendant's version for at least an hour and that during the course of the meeting there had been some discussions – albeit light hearted – about the Defendant boxing again. The conversation had taken place over dinner.
136. When Mr Williams gave his evidence he suggested that the dinner had taken the better part of two hours. Otherwise he confirmed the evidence given by the Defendant after his recall to the witness box.
137. The Defendant could give no rational explanation as to why he had given a false account of the meeting when first asked about it. He suggested that he was tired and under stress in the witness box. It is true that his answers came towards the end of the afternoon session but the Defendant had not been in the witness box since before lunch when he gave these answers.
138. For reasons which only the Defendant knows he chose to tell deliberate lies about his meeting with Mr Schaefer. That must impact, adversely, upon his credibility.
139. In mounting his assault upon the Defendant's credibility Mr Thwaites QC also placed significant reliance upon the terms of an interview which took place between the Defendant and the journalist, Mr Jamie Jackson. Mr Jackson conducted an interview with the Defendant on either the 18 or 19 September 2008. An article based upon the interview appeared under the title "The Special One" in The Observer of 26 October 2008. Mr Jackson had retained the tape recording of his interview with the Defendant and the whole interview was transcribed. Further I was given the opportunity to listen to the interview and I availed myself of that opportunity twice.
140. The extract from the interview upon which Mr. Thwaites QC relied was as follows:-

"Q. On the radio this morning, I was listening to you, you said that you were still owed from the last fight …………

A. Yeah, that's right.

Q. From Frank, obviously.

A. Exactly.

Q. But why is that still happening in this day and age?

A. Why is that still happening? Its disgusting Its disgusting how this is still happening, and how there's not forces stronger that can, you know, look after fighters better. You know, basically, you know, like, the story is, as you know, I had no contract after Hopkins. He can't take the fact that I've left him and I want to do my own thing, which I am entitled to do, you know what I mean, to make money for me and my family, and see what's on the table. If they're transparent, I will fucking have that ……don't ask no questions, do you know I mean? So, at the end of the day, I am owed, like, well, $ 4.5 million. He's saying $3.2 million but I am owed, like, $4.5 million and not being paid. You know, he's suing me for breaching a contract which is a non-existent contract, which was a handshake agreement. What the fuck is a handshake agreement?

Q. Is it going to end up in Court, this, then?

A. Of course, it is. It's going to court. Exactly. I am going to sue him for my money, because I want to get paid my money. So I am disappointed obviously that he has been like this, because I feel that I have given him 12 years, not him given me. I'm the one getting my head punched in the ring. I am the one who is doing the hard work."

141. Listening to the tape recording of the passage is instructive. Mr Thwaites QC suggests that the phrase "What the fuck is a handshake agreement?" is a clear demonstration by the Defendant of his contempt for an agreement reached orally. In effect, according to Mr Thwaites, the Defendant is demonstrating his unwillingness to be bound by his word.
142. In my judgment, however, that is not how the words sound when they are listened to. The words sound as if the Defendant is posing a genuine question and a question which he is asking because he knows that Mr Warren is alleging that an agreement was constituted in this way. As is obvious from the transcript the Defendant also says that the Claimant is suing for breaching a contract which "is a non-existent contract" and earlier in the same passage he asserts unequivocally that he had no contract after the bout with Mr. Hopkins. Looking at the passage as a whole and having listened to the words carefully I do not accept the submission that the Defendant's words amount, in effect, to a demonstration of his contempt for oral agreements and that they show a willingness on his part to avoid oral contracts when it suits him.
143. It is correct to observe, as Mr Thwaites QC submitted, that some of the evidence given by the Defendant in his witness statement and orally appeared to conflict with passages in his autobiography. Of some significance is the passage in the Defendant's autobiography which describes how he would approach losing weight in advance of a bout compared with what he said occurred in the days preceding the fight with Mikkel Kessler. In itself this difference is unimportant but, of course, it does impact, to some extent, upon the Defendant's assertion that he was left with no alternative but to sign the promotional agreement of 2 November 2007.
144. I have already stated my conclusions about this aspect of the history. It suffices, at this point, to say that the undoubted differences between the Defendant's autobiography about the topic of weight loss and his evidence about the days leading to the Kessler bout do not lead me to the view that the Defendant's evidence about the evidence of 15 January 2008 is seriously undermined.
145. I have reached the clear conclusion that the Claimant has failed to demonstrate that the evidence in this case taken as a whole and looked at objectively and dispassionately should lead to the conclusion that Mr Williams engaged in deliberately falsifying his attendance note of 15 January 2008. I have reached the conclusion that Mr Williams' attendance note is, essentially, accurate about the events of 15 January 2008. On that basis alone the Claimant has failed to establish the oral agreement which it alleges.
146. However, I am fortified in my view that the Claimant has not established the oral agreement for which it contends by the following further features of the case. First, there is no suggestion that the oral agreement for which the Claimant contends was ever reduced to writing in advance of the bout between the Defendant and Mr Hopkins. If an oral agreement was concluded as alleged I have no doubt that some written record would have been created prior to the fight with Mr Hopkins. In respect of every promotion by the Claimant or Mr Warren of the Defendant from January 1998 onwards there was always written evidence of the terms of the promotional agreements concluded. In my judgment it simply beggars belief that no written record of this alleged promotional agreement would have been created between 15 January 2008 and 19 April 2008. Everyone accepts that the number of bouts in which the Defendant would engage after his fight with Mr Hopkins was comparatively few. However, upon the assumption that the Defendant was successful in his fight with Mr Hopkins each ensuing fight stood to generate, literally, many millions of dollars/pounds. The Claimant's share of profits should it be the promoter of those bouts would, on any view, run to millions of dollars/pounds. To repeat it simply beggars belief that nothing was reduced into writing to reflect an agreement which was, potentially, so valuable to the Claimant.
147. Further, the failure to reduce anything into writing represented a complete departure from the practice which the Claimant had adopted in the previous 10 years. No explanation was given for such a departure from normal practice and it is inconceivable that any sensible explanation could be offered. Of one thing I am certain. Mr Warren and Mr Simons are astute and experienced businessmen who have a keen eye for their own commercial interests. That is not intended as a criticism but a statement of fact. However, it means that their behaviour in failing to produce one shred of paper which recorded this alleged agreement is inexplicable.
148. It is true, of course, that following the fight with Mr Hopkins the Claimant began to assert the existence of the oral agreement and, obviously, Mr Warren wrote letters which asserted its existence from June onwards. In my judgment, however, those statements and letters amount simply to self-serving statements in advance of litigation after it had become clear that there was a dispute about the existence of the oral agreement as alleged by the Claimant.
149. A second feature which is heavily supportive of the Defendant's case revolves around the instruction of Mr Gareth Williams. I have touched upon this earlier in my judgment. However, it seems to me to be most unlikely that the Defendant would be motivated sufficiently to instruct Mr Williams, to take him to the meeting of 15 January 2008 but, then meekly agree to a private meeting which excluded Mr Williams and in that meeting reach an agreement wholly contrary to that which he had set out to achieve.
150. It also seems to me that the terms of the agreement alleged are most unlikely. It is to be observed that the Defendant felt able to resist the suggestion made to him, as I have found, in November 2007 that the Claimant should be his promoter for a period of 12 months. The Defendant insisted upon one bout only after the fight with Mikkel Kessler. Yet, apparently, a little more than two months later he was prepared to agree that the Claimant should promote him for his remaining fights.
151. Finally, there is the personality of Mr Warren. Mr Thwaites QC submitted that it made no sense for Mr Warren to agree that the Defendant should receive 80% of the Claimant's profits from the bout with Mr Hopkins unless a promotional agreement was also concluded on that day. I disagree. Mr Warren is a resourceful and confident boxing promoter. He has self belief in substantial amounts. Once the Defendant and his father accepted that they would talk to Mr Warren about future promotions as they accept occurred in the meeting on 15 January 2008 my judgment is that Mr Warren immediately took the view that in due course he would be able to persuade the Defendant to participate in bouts promoted by the Claimant. Mr. Warren and the Defendant had a very long relationship. I have no doubt that Mr Warren felt that "when the chips were down" the Defendant would turn to him to promote his further bouts however many there would be. He also thought, no doubt, that in the weeks and months ahead he would be able to discuss these matters without the presence of Mr Williams and persuade the Defendant to his point of view.
152. There is one further piece of evidence which has played some part in my decision to reject the Claimant's case. Mr Wirt gave evidence for the Defendant primarily on issues relating to quantum. I should say, here and now, that I accept his evidence so far as it relates to issues relevant to quantum and that being so if the Claimant had persuaded me that there had been a breach of contract by the Defendant which was actionable the measure of damages would have been restricted to 20% of 50% of the profits actually generated in the fight between the Defendant and Mr Roy Jones Jr. The point of mentioning Mr Wirt at this point, however, is to record that part of his evidence had a direct bearing upon the credibility of Mr Warren. In his witness statement Mr Wirt said that in the immediate aftermath of the fight between Mr Hopkins and the Defendant Mr Warren and he began discussions about a possible bout between the Defendant and Mr Roy Jones Jr. By this time Mr Wirt had heard that the Defendant was asserting that he was a free agent. During the course of his discussions with Mr Warren he informed him of that report. Mr Warren denied that this was the case but Mr Wirt pressed him by asking him if he, Mr Warren, had a binding written agreement with the Defendant giving the Claimant future promotional rights. Mr Wirt told me that Mr Warren replied "Yes".
153. First, I accept Mr Wirt's evidence on this issue. That demonstrates that Mr Warren was prepared to mislead Mr Wirt on any view. Second, and even more importantly, however, when Mr Wirt was properly challenged about this evidence by Mr Thwaites QC he produced a court order apparently recording an order by consent disposing of previous proceedings in which both Mr Wirt and Mr Warren had been involved. I did not receive (since there was no need) the full details of that case but Mr Wirt told me that one of the issues in the case was an allegation by Mr Warren that he, Mr Wirt, had falsified a document. As part of the order disposing of the proceedings Mr Warren expressly withdrew that allegation.
154. I accept from Mr Wirt that Mr Warren did make an unfounded allegation against him which was subsequently withdrawn in the previous proceedings. Just as I have found it necessary to express disapproval of aspects of the Defendant's conduct so, clearly, this was an episode which reflects badly upon Mr Warren and which is bound to affect my view of his credibility.
155. It might seem surprising at first blush that the Claimant would persist in asserting an oral agreement as alleged unless such an agreement did, truly, exist. That might be a proper starting point in some cases involving alleged oral agreements. In this case, however, there was a powerful motivating factor for the Claimant to rely upon an alleged oral agreement even though the same did not exist. That is the fact that in the absence of such an agreement the Claimant owed the Defendant a very substantial sum of money which remained unpaid after the fight between the Defendant and Mr Hopkins. In my judgment the claim in this case has been raised as a smoke screen by the Claimant as an attempt to avoid payment by the Claimant to the Defendant of a very substantial sum of money.
156. In the light of my findings of fact about the existence of the agreement for which the Claimant contends nothing is to be gained by any detailed analysis of an alternative and secondary position adopted by the Defendant, namely that the words allegedly spoken between Mr Warren and himself were too uncertain to constitute a binding agreement. I can understand why the Defendant adopts that fall back position not least because it has taken the Claimant a series of pleadings in order to finalise its case about the terms of the alleged oral agreement and, further, on one version (as recorded in paragraph 99 above) of Mr Warren's evidence about the oral agreement it fell short of the pleaded case. I simply say that the probability is that had I formed the view that the Claimant's account of the meeting of 15 January 2008 was essentially accurate (by which I mean that a separate meeting had occurred which concluded with handshakes and hugs) I would probably have found that sufficient words had been spoken to found a contract particularly since it would have been legitimate for the Court to supplement the words expressly spoken with inferences and implications. To repeat, however, this does not arise on the basis of my factual findings.
157. Similarly, I deal with the issue of quantum consequent upon breach in short order. I have already said that I accept the evidence of Mr Wirt. On that basis it seems to me that the Claimant's claim for damages in excess of 20% of the 50% of profits generated by the fight with Mr Roy Jones Jr is doomed to failure. I simply adopt the arguments on quantum put forward by the Defendant as the reasons why damages would be limited in the way that I have indicated had a breach of contract been established.
158. I turn, finally, to the counterclaim.

Counterclaim

159. The counterclaim seeks an award of the sum of US$ 3,638,306.01.
160. The Claimant does not accept that this sum is due and owing. It seeks to reduce the sum which it should pay to the Defendant on account of two factors. First it seeks to argue that the sum of US$1 million should be deducted from the Claimant's share of the gross profits generated by the bout between the Defendant and Mr Hopkins thereby reducing the share of profit owed to the Defendant. Second, it claims that it is entitled to treat the sum of US$ 171,000 as an expense of the fight. I deal with each of these contested issues in turn.

US$1 million

161. In its Reply and Defence to Counterclaim the Claimant justified the deduction of US$1 million on the basis that the Defendant's father had been provided by the Claimant with tickets to the value of US$1 million. The Defendant served an Amended Defence and Counterclaim which set out the basis upon which the Defendant denied that the Claimant's pleading on this issue was well founded.
162. On 11 February 2009 the Claimant served an Amended Reply and Defence to Counterclaim which, in effect, abandoned its previous position in relation to the US$ 1 million and sought to justify the deduction on a different basis. The case presented in that pleading was that the sum of US$ 1 million represented a reduction in the payment made by Planet Hollywood (the owner of the venue of the bout between the Defendant and Mr Hopkins) because of a short fall in the value of tickets sold by the Claimant compared to the value which it committed to sell. In summary, therefore, it appears that the Claimant is seeking to justify the reduction in profit on the basis of its own breach of contract.
163. What are the salient facts? On 5 February 2008 a written agreement was concluded between Golden Boy and the Claimant on the one hand and Planet Hollywood Resort and Casino on the other relating to the fight between Mr Hopkins and the Defendant. By Clause 1 of the agreement the parties agreed that Planet Hollywood would make a fixed guaranteed payment to Golden Boy and the Claimant in respect of the bout. The payment was set at US$9 million.
164. The following day Planet Hollywood and the Claimant entered into what has been called a "side agreement" about tickets. By the terms of that agreement the Claimant agreed to take and pay for a large number of tickets.
165. As I understand it, the Claimant received tickets from Planet Hollywood but failed to sell them. The reasons appear to be irrelevant. That resulted, however, in Planet Hollywood reducing its guaranteed payment from US$ 9 million to US$8 million.
166. It is clear, in my judgment, that the Defendant did not know of the side agreement. He was not party to it in any sense. No one has suggested otherwise. Nonetheless, the submission is made that since the Claimant, for whatever reason, obtained less profit than it anticipated the Claimant's share of that profit should be reduced accordingly.
167. It is true that the agreement between the Claimant and Defendant was that the Claimant should receive 80% of the share of profits due to the Claimant. To an extent, inevitably, the Defendant was accepting that deductions might be made from the profit generated by the bout over which he would have no control and which had not been caused by any act or omission on his part. It does not seem to me, however, that this means that the Defendant's agreement with the Claimant should be interpreted as allowing the Claimant to derive a benefit as between the Defendant and itself of a loss or expense which comes about solely by reason of its own breach of contract and one with which the Defendant is not in any sense associated.
168. In the written closing submissions on behalf of the Claimant, Mr Thwaites QC and Mr McCormick make the point that, inevitably, there would be many contracts affecting income/expenditure of which the Defendant would be unaware. That is true and, no doubt, the agreement between the Claimant and Defendant would permit of an implication to the effect that expenses reasonably and legitimately incurred would be deducted from gross profit. In my judgment, however, that is wholly different from the present situation. The Claimant's agreement with Planet Hollywood was not, in any real sense, a contract which was reasonably and sensibly entered into as a foreseeable consequence of the promotion of the fight. Even if it was, the Claimant's breach of that contract was certainly not a foreseeable consequence of the promotion of the fight.
169. In my judgment the Claimant was not entitled to deduct US$ 1 million from its share of the profit in its account with the Defendant. It was a loss incurred by the Claimant which was unrelated to the agreement between Claimant and Defendant and the Claimant should bear the consequences of that loss.

US$171,000

170. I propose to deal with this issue summarily. In paragraphs 37 to 45 of the written closing submissions on behalf of the Claimant the basis upon which the Claimant justifies the deduction of this sum as an expense of the promotion is set out. I accept the analysis in those paragraphs and accordingly I hold that the Claimant was legitimately entitled to deduct this sum from its share of the profits generated by the fight between the Defendant and Mr Hopkins. Accordingly, the Counterclaim is reduced to the extent that is justified by this finding. No doubt Counsel will agree the precise figure consequent upon this finding which should be awarded to the Defendant on his Counterclaim.

The currency in which judgment should be given

171. The Defendant seeks a judgment in US dollars. The Claimant submits that the judgment should be in pounds sterling. There is no dispute about the Court's power to give judgment in US dollars.
172. In support of its submission that judgment should be given in pounds sterling the Claimant relies upon The Despina [1979] A.C. 685. The head note to that case reads:-

"Where the terms of a contact governed by English law did not expressly or by implication show that the parties had intended that payments arising from a breach of contract were to be paid in the currency of account or other named currency, the Court should give judgment in the currency that best expresses the party's loss."

173. I need not quote from those parts of the speeches of their Lordships which justify that proposition since it is accepted on behalf of the Defendant that the headnote sets out the correct legal principle.
174. There can be no doubt that the contract which existed between the Claimant and Defendant was governed by English law. Clearly, there was no express provision as to the currency in which the Defendant was to be paid his share of the profit. In my judgment no implied term arose since (a) such was not necessary to give business efficacy to the agreement and (b) there was no relevant history of dealings between the parties which might found an implication in relation to the agreement concluded on 15 January 2008. The plain fact is that never before had the Claimant and Defendant agreed that the Defendant would be paid a share of profits for participating in a bout.
175. Accordingly, it seems to me that I must give judgment in the currency that best expresses the Defendant's loss.
176. There is no doubt that the accounting exercise following the fight was undertaken exclusively in US dollars. Equally clearly, in my judgment, the Defendant's expectation was that his share of profits would be paid to him, in the main, in pounds sterling. Although, no doubt sums payable in the US were paid on behalf of the Defendant in dollars the Defendant actually received £1 million shortly after the bout on account of his share of the profits. Had this dispute not arisen I have no doubt that the Defendant would have expected the balance to be paid in pounds sterling.
177. In my judgment the currency which best expresses the true loss in this case is pounds sterling.
178. There was no express agreement between Claimant and Defendant about time for payment. The co-promotional agreement between Golden Boy and the Claimant, however, contained detailed provisions about the process of accounting and payment of shares of the profit to each promoter. In very simple terms it is clear that each promoter expected that a very significant proportion of the profits generated by the fight would be shared between them long before 60 days had elapsed after the bout and that the entire accounting process was to be completed within 60 days of the bout. The Defendant is a signatory to the co-promotion agreement but he was not a party to it.
179. It seems to me that as between Claimant and Defendant the Defendant was entitled to be paid within a reasonable time of the dates when the Claimant received tranches of its share of the profit. In this context a reasonable time is to be measured in days.
180. There is no precise evidence before me as to the dates when the Claimant received various tranches of the profits (or if there is my attention has not been drawn to it). I anticipate that the Claimant had received the lion share of its profits as the agreement specified i.e. within about 30 days of the bout. If I am wrong in this assumption because evidence does exist to show the contrary (by which I mean evidence in the witness statements or the current Trial Bundles) I am willing to be corrected by short written submissions provided in advance of the hand down of this judgment. In the absence of any such representations I take the view that justice would be done to the parties if I fix Friday 6 June 2008 as the date by which the Claimant should have paid the balance of sum owing to the Defendant. By my calculation that is 48 days after the bout. That allows for a reasonable time to elapse after the 30 day period I have mentioned and also takes account of the fact that it may be that a small share of the profit was not paid to the Claimant until after that date. It follows that in a somewhat rough and ready way I hold that the Claimant became obliged to pay the balance due to the Defendant in pounds sterling on 6 June 2008 and, in the absence of any argument to the contrary at the handing down of this judgment, that is the date from which interest should run.
181. Finally, I should record that the Defendant alleges that the Claimant acted in breach of fiduciary duty in failing to pay the Defendant. I have not investigated this allegation. Both parties agreed that this issue should be adjourned and not resurrected unless the Claimant fails to satisfy this judgment.
182. I propose to hand down this judgment at 2.00pm on Monday 16 March 2009. If the parties can agree the terms of an order consequent upon this judgment there need be no further attendance by the parties or their lawyers. If there are points of disagreement about the terms of the order the parties may, if they prefer, provide short written submissions upon the points of disagreement and I will then resolve those points without the need for the attendance of lawyers. Obviously, however, if the lawyers consider that there is a need for oral submissions at the hand down of the judgment they are entitled to appear and make them.