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

HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MERCANTILE LIST
LEEDS DISTRICT REGISTRY

		Leeds District Registry 1 Oxford Row Leeds LS1 3BG
		15th July 2013

His Honour Judge Saffman :

Introduction

1. The Claimant Keith Mason is a professional and accomplished prop-forward who from 5^th May 2006 until his summary dismissal on 4^th October 2012 played for the Defendants Huddersfield Giants who are a successful rugby league club playing in the Super League.
2. On 20^th August 2010 the Claimant and the Defendant had entered into a contract of employment to cover the period 1^st December 2011 to 30^th November 2015, namely four seasons by which time the Claimant, who is currently 31, would be 33. It provided for the Claimant to be paid £95,000 a year for the 2012 – 2013 seasons rising to £97,500 a year for the following two seasons if the Defendant's salary cap which is the maximum they can expend on players wages in any one season increased to above £1.65 million.
3. The contract also provided for the Claimant to be entitled to various bonuses on the happening of certain events but none of those, I think, are relevant for the purpose of this claim. By clause 21.1 of the contract (to be found at page 268 of the bundle) the club became entitled to summarily dismiss the Claimant for gross misconduct.
4. Clause 21.1 reads as follows:

"Notwithstanding any other provisions of this agreement the club may terminate this agreement summarily by serving the player with written notice to that effect. In such event the player shall not be entitled to any further payment from the club whether by way of compensation, damages or otherwise in respect of or in lieu of any notice period or unexpired term of this agreement. This clause shall apply if the player is guilty of any acts of gross misconduct which shall include, but is not limited to, the following circumstances in which a player:

(a) commits any serious breach of this agreement, which for the avoidance of doubt, without limitation, shall included serious or persistent breaches of clauses 5 or 12 above; or

(b) are guilty of any serious or persistent misconduct or any wilful neglect in the discharge of his duties including, but not limited to, any offence of gross misconduct as defined in the procedures annexed to this agreement from time to time as amended."

5. I have not been referred to the procedures annexed to the agreement but it will be noted that the definition of gross misconduct includes, but is not limited to, persistent breaches of clauses 5 and 12 of the agreement as well as serious or persistent misconduct or any wilful neglect in the discharge by the Claimant of his duties.
6. Clause 12 is not relevant to this claim but clause 5 is. That is to be found at page 265. The relevant sub clause is 5e which states that:

"You agree with the club that…

… (e) You acknowledge and agree that to preserve the good name and reputation of the club and the league that your conduct both on and off the field must be of the highest standard and that you must conduct yourself at all times both on and off the field in a manner which will uphold the good reputation of the club and the league and not bring the club or league into disrepute. And that if you breach this clause the club may take action against you independent of any action that the league may take against you under the regulations. If your conduct is such that, in the reasonable opinion of the club, the reputation of either the club or the league is or is likely to be harmed this could amount to gross misconduct which may lead to summary termination."

7. The Defendants summarily terminated the Claimant's contract on 4^th October 2012 on the basis of gross misconduct and that his dismissal was justified on that basis.
8. The Claimant does not accept that. He contends that his dismissal was wrongful and in breach of contract and he brings his claim on that basis.
9. The Claimant is represented by Mr Budworth of counsel and the Defendant by Mr Wilson of counsel.
10. I had hoped at the outset of this case that perhaps quantum of this claim could have been agreed subject to the issue of liability. That however, has not proved possible and so I propose initially to deal with the question of liability and thereafter quantum if it remains relevant.

The misconduct alleged

11. What was the alleged conduct which the Defendant says justifies their decision to summarily dismiss the Claimant? On Sunday 16^th September last year the Defendant's playing season ended for the first team with their defeat by Hull KR in the Super League playoffs. A practice appears to have grown up amongst Super League clubs that, at the end of their season, the first team players take part in what has become known as 'Mad Monday'. This can only be described as a sort of communal bender where all the first team members embark upon an extended drinking session. This Mad Monday, so far as the Huddersfield first team were concerned, started on the Sunday evening after their game at Hull and it did not draw to a conclusion until the following Tuesday, 19^th September, with no real let up in the drinking during that period.
12. It seems that at some stage during Mad Monday Scott Moore, a team mate of the Claimant, used the Claimant's phone when the Claimant was absent at the toilet to take a picture of his own anus. The picture is to be found at page 300 of the bundle. It is not now suggested that the Claimant was present when, or indeed even aware of, this picture being taken, however, the Claimant acknowledges that he became aware of the photo not long thereafter when he was given the tip off by one of his team mates.
13. On Tuesday 18^th September when the Claimant got home from this extended drinking session, by which time, as one may probably expect having been drinking ceaselessly since the previous Sunday night, he was considerably the worse for wear and very tired. He decided to have a bath. While he was in the bath his girlfriend, Lauren Harwood, looked at photos on his phone and came across this photograph of Scott Moore's anatomy and she asked the Claimant what it was. He told her and (and this is accepted by the Defendants) unbeknown to him and without his encouragement Miss Harwood tweeted the picture from the Claimant's phone with the message,

"What the hell is this?"

14. The picture was tweeted to alleycat21 which is Scott Moore's tweet address. The effect of that, and I understand this to be common ground between the parties, is that it would have been seen by all the Claimant's twitter followers of which there are about 4,200 provided that they cared to access it.
15. The actual tweet sent by Lauren Harwood is at page 301 and the Defendant's evidence is that it was sent at 12:39 on that Tuesday but the Claimant actually contends that it was not sent that early but was in fact sent sometime in the middle of the afternoon or early evening.
16. Whatever time it was sent it was seen by a Mr Gavin Wilson very shortly thereafter who had the good sense to send a tweet saying "Lads, really not cool". That was sent to the Claimant at his tweet address, maso106 and it was also sent to Scott Moore.
17. In his witness statement and indeed in his oral evidence the Claimant denies that he was aware of the offending tweet until the following day at the earliest, however, he does not deny that he responded to Mr Wilson's tweet within a matter of minutes with a tweet of his own saying "defo not me". That tweet is at page 301 of the bundle. It is not the full extent of the tweet. The full extent of the tweet includes Mr Wilson's earlier tweet, so the tweet reads "lads really not cool" "It's defo not me".
18. There is obviously an inconsistency in the Claimant's two positions namely that he had no idea that the offending tweet had initially been sent and the fact that he admits sending out a response minutes after it was sent which effectively refers to it.
19. They are reconciled as far as possible by the Claimant on the basis that at this time he was still inevitably very drunk and he had not really got his head around the offending tweet until he sobered up and recovered from the very serious hangover from which he was suffering for the whole of the following Wednesday.
20. It is right to say that the fact that the Claimant was still drunk on 18^th September when he got home from Mad Monday did not preclude him from continuing to tweet. The fact that he did so is evidenced by extracts of further tweets, to which I have been referred and which are in the court bundle, not only on the Tuesday but also on the Wednesday.
21. The Defendants contend that these are an indication that the Claimant was compos mentis well before Thursday which is the date when he says that he really came round from the effects of Mad Monday.
22. Twitter offers the facility to delete tweets that have already been sent. The offending tweet was deleted on Thursday 20^th September 2012. The Claimant says that he did it on Thursday morning when, having sobered up and recovered from his hangover, he realised the enormity of the photo and deleted it of his own accord without prompting from anybody else.
23. The Defendant's position is that it was not deleted until later that day and only then after the Claimant had been contacted by his agent, Martin Shuttleworth and told to remove it. By that time Mr Richard Thewlis the clubs chief executive had been made aware of the tweet because he was telephoned on the Tuesday evening by a friend of his, Gary Shuttleworth, (not to be confused with Martin Shuttleworth to whom I have already referred). Gary Shuttleworth was head of operations at Kings Security Systems, one of the club's sponsors. At Mr Thewlis's request Gary Shuttleworth committed his complaint to writing and his letter of complaint is at page 303 of the bundle and is dated 20^th September 2012.
24. Having received Gary Shuttleworth's complaint orally on the Tuesday night, the following morning Mr Thewlis accessed the Claimant's twitter account when he was at work, he having no facilities to do so from home. His evidence is that he then contacted the Claimant's agent Martin Shuttleworth and asked him to get in touch with the Claimant to delete the photograph.
25. It is Mr Thewlis's evidence that Gary Shuttleworth's complaint was followed by other complaints. At 7:37 in the morning of 21^st September an email was sent by Mr Stewart Blees of Vasanta Limited which is the club's main sponsor.
26. That email indicates that it had been brought to Mr Blees' attention by a couple of people from within his company who follow Giants players on twitter that earlier in the week this very disturbing picture had been tweeted by one of the players.
27. He indicates that he has not actually seen it himself but has been told what it was a picture of and that it had been posted by Keith Mason. He was concerned about the thought processes that prompted such a tweet to be broadcast by somebody in the limelight with so many fans including young children. The email is at page 306.
28. 11 minutes later that day an email was received from J Mitchell who reported that he was shocked and appalled by what he describes as a thoroughly obscene image posted on the Claimant's twitter account and suggesting that the tweet can only harm the club. He points out that the players are role models and that they should act as such and points out that Huddersfield are known as a family club supported by many children. He dreaded to think what the impact would be of them seeing this tweet. That email is at 307.
29. At 329 there is a complaint from a Mr Robert Armstrong. He too talks of how this tweet is inconsistent with a family orientated sport and talks of the Claimant's position as a role model for so many aspiring players. He indicated that he would not be happy to see Mr Mason play again for the Giants and he said that he was not the only one. Mr Thewlis is not clear how that particular complaint came to his attention but he assumed that it was by letter. It bears no date or address of the sender nor in fact is it signed.
30. There was also apparently a complaint from a Mr Thickling referred to in Mr Thewlis's witness statement to which I have not actually been referred so far as I can recall. In addition there were some oral complaints apparently from people that Mr Thewlis bumped into in the street.
31. Mr Thewlis took the view that the issue was one that needed to be taken further. On 21^st September Mr Thewlis wrote to the Claimant to advise him that there was to be a disciplinary hearing on 28^th September at the club stadium. Mr Thewlis's evidence was that he would have convened this disciplinary hearing whether or not he had received complaints because he himself was very concerned about the posting of the tweet.
32. The letter telling the Claimant that a disciplinary hearing was to take place is at 304 of the bundle and it is clear from that letter that Mr Thewlis was concerned that the Claimant himself had posted the offending tweet.
33. The Claimant says that he actually went to the stadium on the Thursday morning for training. This is the Thursday after Mad Monday. His evidence is that he bumped into Mr Thewlis at the stadium who said nothing to him about the offending tweet. Mr Thewlis does not challenge that evidence although he does not recall having seen the Claimant. He confirms, however, that even if he had seen the Claimant he would not have mentioned the tweet because at that stage things were going to go through to a disciplinary hearing and he did not think that under those circumstances it was appropriate to speak to the Claimant about matters which would be the subject matter of that hearing.
34. It is in my view difficult to understand why the fact that the matter is going through to a disciplinary hearing should preclude Mr Thewlis from enquiring whether the offending tweet had actually been removed, particularly in circumstances where it is the Defendant's case that the tweet was holding the club up to disrepute.
35. The disciplinary hearing was duly held and it was conducted by Mr Thewlis with an employee of the club simply there to take notes. There is a minute of the hearing at page 308. In evidence the Claimants did not suggest that the minute was inaccurate but, when questioned in detail, he disputed that he had said that the tweet had been sent sometime around lunchtime on the Tuesday. It is right to say that the minutes themselves record that the Claimant asked to see evidence of the time the picture was sent and they also record that it is difficult to be clear as to the time.
36. The Claimant did not dispute that he understood his position as a role model and the impact that this photo could have on the reputation of the club. He pointed out that he himself had children and that he would never have sent pictures of this nature and indeed that it was stupid of Miss Harwood to have done so.
37. On 4^th October Mr Thewlis sent a letter to the Claimant summarily dismissing him on the grounds of gross misconduct under clause 21.1A of the contract. The letter of dismissal is at page 310. Mr Thewlis makes it clear that, following the hearing, he accepted that the Claimant did not take the photo and nor did he post it on Twitter. He says however:

"You were aware of the photo being on your account for a considerable period for time. Given that you have over 4000 followers you must have been aware that the image would have been viewed by a considerable number of people and of the effect it would have on the reputation of the club. The fact that you did eventually delete it is evidence that you aware that the image was both offensive and completely inappropriate. During the hearing you accepted that your profile made you a role model for the club and you understood the impact that the presence of such an image on your Twitter feed could have on the club. You also acknowledged that you had attended a social media presentation before the start of the season which stipulated how players use social media.

I believe that the fact that you were aware of the image being on your Twitter feed for around 2 days and that you commented on it harmed the club and the league. I believe your actions in leaving the photo on your Twitter feed and commenting upon it therefore amount to gross misconduct."

38. And appeal against this conclusion was made to the Deputy Chairman Doctor Paul Morgan. It was dismissed. His letter to that effect is at 334 and the minutes of that appeal hearing are at 332. The relevant parts of the letter dismissing the appeal read as follows:

"The Huddersfield Giants have a long established commitment to building relationships with the community, families and children. For many years the Giants have been unique in rugby league in offering free admission for all children under 12.

The Giants' players are role models for the families and children who support the club and potential new supporters. Such is the importance of the clubs' brand and image that the Huddersfield Giants emphasise the need for responsible use of social media by all staff. In the staff handbook the club recommends that the staff publish a disclaimer making it clear that personal points of view are not those of the club. The social media presentation by Robbie Hunter-Paul emphasised the impact of player's social media usage on the community, families and in particular children. He also highlighted that players have responsibility for photographic images as well as the written word. As a player you understand the above points and have full responsibility for controlling access to your mobile phone and for securing access to your Twitter accounts.

On Tuesday September 18^th, Wednesday September 19^th and Thursday September 20^th and explicit and profoundly distasteful photograph of an anus could be viewed on your Twitter Account with other 4000 followers. The account clearly identified you as a Huddersfield Giants player and did not have a disclaimer. You are responsible for words and images on your social media accounts. Throughout this period you tweeted and re-tweeted yet did not remove the offensive image. I believe therefore you must have been aware of the presence of the image on your account. In addition to the image being in complete contradiction of the values of a family and children orientated club there were complaints from individual supporters and sponsors. You've been provided with samples of these complaints. For these reasons the decision made by Richard Thewlis will be upheld."

39. In summary the Claimant was dismissed therefore for being aware of and failing promptly to remove an offensive tweet that was wholly at odds with the image the club sought to portray as a family orientated club and that therefore the club had been brought into disrepute. The club argues, as indeed was mentioned by Doctor Morgan in his letter, that the Claimant was fully aware of his responsibilities, that essentially he is an ambassador of the club and an upholder of its values.
40. Attention is drawn to the fact that these responsibilities are contained in clause 5e of his contract which I have already read. The Claimant was also referred to a leaflet issued by the RFL under the banner "respect" to be found at 396 and which the Claimant admits he received. This emphasises that rugby league prides itself on being a family game "taking positive action to ensure high standards of behaviour at all times and to accept moral and legal responsibility for implementing procedures that provide a duty of care for children and safeguard their wellbeing".
41. During the course of his evidence Mr Mason's attention was also drawn to a general information letter sent to all players including himself in January 2011 to be found at page 366 which exhorts the players to "buy into the philosophy of family values at the club".
42. There is also at page 353 a policy document on Network Personal Blogs which is intended to drive home the same message and which specifically draws attention to the possibility that breach of the policy may constitute gross misconduct and may lead to dismissal. I refer to page 355. It gives examples:

"misuse of the club's name or logo, the making or inferring of derogatory, abusive or negative comments which included but aren't limited to material relating to gender, sex, race, sexual orientation, religious or political convictions or disability, incitement of hatred, violence or revealing confidential information including criticising or embarrassing the club, staff or customers or clients."

43. Also of importance, says the club, is the fact that Mr Robbie Hunter-Paul a very respected former player and former business development manager at the club specifically delivered a social media education presentation to the first team, including for the Claimant, on 6^th February 2012 which was specifically designed to stop this sort of event occurring. He made a statement which starts at page 236 of the bundle which is not challenged and accordingly he has not been required to give oral evidence.
44. I refer in particular to paragraphs 10, 11, 12 and 13 of that statement and I have also been taken to PowerPoint slides which accompanied the presentation. These start at page 387.
45. The Claimant does not dispute that he has been made aware of his responsibilities by reference to these documents and the Robbie Hunter-Paul presentation and indeed does not dispute that he was present when the chairman of the club gave a speech along the same lines. And he made clear in the disciplinary meeting that he fully appreciated that he was seen as a role model and personally subscribed fully to the philosophy of the club in relation to upholding family values.
46. Nevertheless his position is that his conduct in simply failing to delete the tweet between Tuesday and Thursday was not gross misconduct justifying dismissal on a summary basis. He denies the suggestion put to him by Mr Wilson that he held the clubs rules and values in contempt. He disputes the mere fact that he received a warning from the club in 2009 and which appears at page 263 suggests to the contrary. That warning was given because he missed a training session to go to an event in London. He points out that in the same year he was appointed coach's player of the year.
47. He also disputes that the fact that he uses and promotes a supplement called Muscle Force when another supplement supplier Muscle King is actually a club sponsor is also an indication of indifference to the club rules.
48. He says that he never realised that his involvement with Muscle Force, which is run by a friend who gives him free supplements, was a contravention of club policy. Indeed he says that he actually brought the supplements into the club for them to be checked to ensure they did not contain anything illegal.
49. I pause here to deal with two issues. The first is an attempt to put the Claimant's tweets in context. The Defendants say in their defence that the Claimant's twitter account is inextricably linked to him in his role as a high profile player for the club evidenced by the fact that he had 4,200 followers and the Claimant himself recognises that most were ruby, and in particular Giants, fans.
50. I am told but have not been shown any evidence that there is, in fact, a biography on his Twitter account describing the Claimant as a Giants rugby player. That does not appear on any of the tweets that I have been referred to and there is no evidence that it appears on every tweet he sends. The evidence is however, that the club took advantage of those players who subscribed to Twitter by ensuring that they tweeted information about the club to their followers. Accordingly say the Defendants a disreputable tweet brings the club into disrepute.
51. The Claimant says that it was obvious to even a casual observer or follower of his Twitter account that he used it predominantly for personal and social rather than work related purposes and so a loss of reputation by the club would not arise in the mind of a reasonable reader of his Twitter postings. The Claimant denies therefore that the club is actually tarred by this particular brush because, objectively, the tweet cannot be seen to be a tweet on behalf of the club or reflecting the club's values.
52. It is right to note that it does not appear that the club have ever issued an apology to its supporters who may have been subjected to this tweet nor indicated that they are taking, or have taken, disciplinary action to protect their reputation. One might have expected that this would be the reaction where there was concern that they may be associated with the Claimant's conduct and indeed that was conceded by Doctor Morgan this morning during the course of his evidence. Nor did they instruct the Claimant himself to issue an apology.
53. The second point is to record a further aspect of Mad Monday which came out during the course of the oral evidence. It transpires that the players at Huddersfield, as indeed at other Super League clubs, have a tradition whereby a player who has failed to score a try in the Super League during the course of the season has to undertake a run in public entirely in the nude. When I say in public I do not mean simply in the presence of his team mates I mean in public; as I understand it often through the streets. Mr Thewlis is aware of this. The 'naked run' as it is called is an established tradition. There is an article written by Eorl Crabtree one of the team players published in the Huddersfield Daily Examiner on 22^nd September 2012 which is to be found at page 461 of the bundle in which he talks about the naked run being one of the events during Mad Monday which "always goes down well".
54. There is a further article from the Huddersfield Daily Examiner 24^th April 2012 about another player Luke Robinson headed "Luke Robinson happy to do dreaded Huddersfield Giants naked run".
55. Mr Thewlis' evidence is that he does not like this naked run. He has in the past suggested to the club captain that perhaps this event could be run behind closed doors and indeed that appears to have happened on one occasion but that was the exception. The club has not formally embargoed this practice in the sense of making participation in it a disciplinary offence.
56. I now return to the main narrative. I have already said that the Claimant's position is that his conduct was not gross misconduct. His position is that his dismissal was motivated by other factors.

Claimant's contention as to reasons for dismissal

57. It is not disputed by the Defendants that the Claimant was a highly paid player. Indeed Mr Thewlis was only able to think of perhaps 5 players in the squad who were paid more.
58. The Claimant believes that the fact is that he really does not figure in the club's plans going forward, particularly following the departure of Nathan Brown as coach in July 2012 and his replacement with Paul Anderson and that essentially the club wanted to off load him.
59. Mr Thewlis denies this. On the contrary he says the style of play that Paul Anderson adopts was one which was prop heavy. He believes in big props, like the Claimant, and plays the sort of football where somebody like the Claimant would be deployed.
60. Indeed it has to be said that there is no dispute by the Claimant that that was Mr Anderson's style of play and that, since Mr Anderson has become coach and before the claimant's dismissal, he was a starter in every game for which he was available and was he playing good football.
61. In his witness statement at paragraph 18 page 216 Mr Thewlis made it clear that the Claimant was in Mr Anderson's plan for the 2013 season. Having said that it is not accepted by the Claimant that in October 2012 when he was dismissed the club was short of props, as is also suggested by Mr Thewlis.
62. The Claimant's position was that there were still at least 5 or 6 players other than the Claimant who could undertake that role. He contends that, notwithstanding the fact that he was a starter in Mr Anderson's team, there is clear evidence that the club actually wanted the Claimant off the books. In this context a great deal of time during the case has been devoted to a consideration of negations which took place with Wakefield Wildcats in August 2012. It seems that an approach was made by Wakefield for the Claimant and they were prepared to pay a salary of a £105,000 per year compared to the Claimant's salary at Huddersfield of £95,000.
63. Mr Thewlis during the course of his evidence was taken to some correspondence between him and Martin Shuttleworth who at that time was the Claimant's agent. At page 424 and page 425 are four emails written by Mr Thewlis in which he tries to reach terms with Mr Shuttleworth for a transfer of the Claimant to Wakefield. Initially he is prepared to offer the Claimant £15,000 to leave Huddersfield. The following day in an email headed "K Mason final attempt" he seeks to persuade Mr Shuttleworth, who apparently is holding out for more that his position is ridiculous, and Mr Thewlis goes on to explain why. As an added incentive to the claimant to move he offers the Huddersfield first team to play free of charge in any testimonial that the Claimant should be awarded if he were to leave and go to Wakefield and suggests that that might be worth as much as £10,000 to the Claimant. He also offers to increase the £15,000 currently on the table as a severance package to £20,000.
64. On the following Monday which is the following working day he emails Mr Shuttleworth to say that he is astonished that his Friday offer has not been accepted and he increases his severance offer to £30,000. And finally two days later the following Wednesday, 8^th August he increases it to £35,000.
65. On that same day 8^th August he wrote a letter to Mr Shuttleworth to be found at 426 and 427 of the bundle in which once again he tries to convince Mr Shuttleworth that this deal should be grasped with both hands. I quote from it:

"To summarise then, if Keith wishes to turn down our severance plus a salary increase of 30K over three years I estimate our severance offer to be worth circa 30K over three years. In other words he is turning down over 60K!!!"

"Then there is nothing more I can do."

66. Over the page:

"You are aware that we have signed three additional prop forwards for the 2013 season already all of whom Paul Anderson expects to be in a starting 17. Our reserve grade will be scrapped next year and a partnership is being explored in Batley which will involve every player here and not just the younger ones thus anyone not making the starting side will be available to play at Batley each week. The potential value of a player regularly at that level does not bear thinking about when you come to renew Keith's deal in 2016 season. He has to pay in Super League to have any hope of getting a further two years at around 55k mark as many others who have left us have successfully shown can be done. It won't be if he's in the championship as we both know."

67. The deal was never done but it is interesting to note that there is a suggestion in that paragraph that Mr Mason may not be making the starting line up going forward.
68. The Claimant was not convinced that it was in his interests to make the move. He deals with this in paragraph 5 of his witness statement. It is not entirely relevant but he says that Wakefield were not a wholly successful club, certainly not as successful as Huddersfield. Indeed they were a struggling club and there was a fear that playing for them would not present the Claimant with the visibilty that he needed to continue to develop his career.
69. It has to be said, when one reads the emails and the letter, it portrays an obvious growing sense of exasperation on the part of Mr Thewlis that this deal could not be closed. Indeed Mr Thewlis was prepared in his evidence to admit to frustration that the deal did not go through bearing in mind that he had put so much work into it.
70. It also has to be said that the tone of his emails and letter do not sit well with his contention that he was happy for the Claimant to stay on at the club and was only pushing the deal because he did not want a disgruntled player at the club whose sense of disgruntlement may affect other players.
71. This letter of 8^th August makes reference to three additional prop-forwards having been signed. This brings me to another area in which there was much evidence. The Claimant's contention is that the club had already taken steps, even before the offending tweet arose, to replace him.
72. The three prop-forwards that Mr Thewlis had in mind are Messrs Mullally Ta'ai and Kopczac. I did not hear any evidence about Messrs Mullally and Ta'ai but Mr Kopczac figures pretty extensively in the evidence but I do not think I need dwell too long on the evidence concerning him. It has to be said it does not show Mr Thewlis in a good light. The bottom line here is that ultimately Mr Thewlis accepted that he had essentially done a deal to bring Mr Kopczac to the club before this letter of 8^th August was written.
73. At that time Mr Kopczac was under contract to Bradford Bulls. An approach to a player by one club while he is under contract to another club without the consent of that second club is contrary to RFL rules. It is known as 'tapping up'.
74. The RFL itself had a suspicion that Mr Kopczac had been tapped up by the Defendants and it launched an investigation. The details of that investigation are in the bundle from page 275.
75. Mr Thewlis was interviewed by an investigating officer on 9^th October 2012. At page 292 he is recorded as telling the investigating officer that he never put an offer to Mr Kopczac's manager until about two weeks before 9^th October; that is sometime in late September. That is untrue even on Mr Thewlis' own admission.
76. It is right that Mr Kopczac's contract was not signed until 23^rd October but the schedule to his contract indicates that his employment is deemed to have started on 1^st September. That contract is at page 328a and the schedule to which I refer is at 328g. It is interesting to note that the contract was signed on the same day that the club was notified that the RFL was not taking the tapping up charge any further. There is an email to that effect from the RFL at page 328.
77. There is an entry in Mr Thewlis' diary of 27^th July in which he records that he has a meeting at the Cedar Court Hotel in Huddersfield. It is clear from that entry that whoever the meeting was with, and that is not clear, Mr Kopczac was on the agenda. A copy of the diary is at page 421.
78. At page 478 there is an email to Mr Thewlis' secretary. I think it is a secretary, it is certainly someone who works at the club asking her to ring Martin Shuttleworth in order to obtain bank details for Mr Kopczac's wife. It is not disputed by Mr Thewlis that Mr Kopczac did indeed receive wages for September and October for the period before his contract was actually signed.
79. Mr Kopczac signed up for £60,000 per year. The club have also signed Stuart Fielden. Indeed both Mr Kopczac and Mr Fielden gave evidence having attended court in answer to a witness summons.
80. Mr Fielden, as indeed was Mr Kopczac, was also a prop – forward. He was released by Wigan I think in 2012 and so was looking for another club. He stated that he had been in talks with Huddersfield prior to early October and indeed they were talking for a few weeks. He said that as a result of those talks and despite the fact that Huddersfield was one of five clubs interested in him by September he felt that it was likely that Huddersfield would be his new club. He signed up with Huddersfield by a contract dated 5^th October for 3 years at £55,000 per year.
81. Mr Kopczac's and Mr Fielden's salaries together amount to just £15,000 more than the Claimant's contract.
82. It was put to Mr Thewlis that the signing of Messrs Fileden and Kopczac was going to have an unwelcome effect upon compliance with the club's salary cap.
83. In his witness statement in paragraph 19, page 216 he says that the Claimant and Mr Kopczac and Mr Fileden, could all be accommodated comfortably accommodated (that is the phrase he uses) within the salary cap. In fact the recruitment of these two additional players would bring the club to within 0.7% of the salary cap and indeed the Claimant's pay amounted to 1/16^th of the club's salary cap in itself.
84. Mr Thewlis says that it is not unusual for a club to operate so close to the margin of its salary cap but it seems to me, on any view, that it cannot be described as a comfortable accommodation. The consequences of exceeding the salary cap can be very serious indeed. The rules relating to salary caps are at page 443 and the sanctions for breach range from a caution at one extreme to suspension from the Super League at the other (see clause E1.9.1 at page 455).
85. In this case as I have said I have heard from Mr Kopczac and Mr Fielden but I do not think that their evidence touches greatly on the question of liability except that both indicate that they were in negotiations with Mr Thewlis prior to the time that the Claimant's disciplinary proceedings arose. Mr Kopczac also confirmed in his evidence that his deal with the Defendants was all but concluded by August 2012 and he was paid from September.
86. I also heard from Martin Shuttleworth formally the Claimant's agent to whom I have already referred and indeed he is still Mr Kopczac's agent. On the issue of liability he was taken to the negotiations with Wakefield in August 2012. It has to be said he did not think that Mr Thewlis was particularly promoting the idea that the Claimant would be better off at Wakefield. As I have said, this appears to me to be completely contrary to the tone of the emails and the letter to which I have referred. He explained why it might not have been a good idea for the Claimant to go to Wakefield. I think I have already recited them but it seems to me that they are not in point. The fact is that the letters and emails particularly the letter of 8^th August and particularly the first paragraph of the second page of that letter make it clear that Mr Thewlis thought it was a good idea for the Claimant to go.
87. Mr Thewlis' evidence is that once an offer has been made it is appropriate for the club to notify its players because they are going to find out anyhow. The rugby world is a small one. If a player finds out something has been kept from him it is going to create disgruntlement and disillusion. I accept that, but these letters and this email are not designed simply to point out to Mr Mason that an offer has been made for him which may conceivably be an improvement on his position at Huddersfield. They are actually promoting or encouraging the Claimant, in my view, to take up that offer.
88. Mr Shuttleworth had some evidence about the offending tweets. First he said the photograph was sent to him out of the blue presumably by Mr Thewlis. He did not immediately identify it as an anus, in fact, that did not dawn upon him until it was drawn to his attention that that was what it was by Mr Thewlis. His first impression when he saw it was that it was in fact a photograph of a hairy peach. In my view this is perhaps not wholly unimportant because it seems to me to be questionable at least as to how many people actually when presented with this picture out of context would automatically assume that it is a man's anus.
89. Mr Wilson acknowledged that that may be so but also quite rightly pointed out that there would be many who would automatically identify it for what it is and there is evidence indeed that that is the case. That evidence coming from the complainants to which I have already referred indeed the fact that it was recognised as such by others not least Doctor Morgan's own children.
90. In any event whether the photograph is immediately recognisable for what it is or not Mr Shuttleworth corroborates Mr Thewlis' evidence that Mr Thewlis contacted him and asked him to speak to the Claimant to get him to remove the offending picture.
91. Mr Shuttleworth says he contacted the Claimant. He cannot say when he did so only that it was before 22^nd September. In his final submissions Mr Wilson suggested that the evidence was that he had done so within 15 minutes of his conversation with Mr Thewlis.
92. The picture was deleted from Twitter as we know on 20^th September. When pushed Mr Shuttleworth assumed that his conversation with Mr Thewlis must have been between Tuesday and Thursday but he was unable to categorically state that the tweet had not been removed before he rang the Claimant.
93. It is interesting to note that Mr Thewlis' letter of dismissal to the Claimant uses as one of the grounds for dismissal the fact that the Claimant removed the tweet. It will be recalled that in that letter is the sentence:

"The fact that you did eventually delete it is evidence that you are aware that the image was both offensive and completely inappropriate."

94. It has to be said that this sentence is difficult to reconcile with the Defendant's current position that the Claimant was actually told to remove it.
95. Doctor Paul Morgan the Deputy Chairman of the club gave evidence this morning. His witness statement starts at page 226 and it is clear that he is a great supporter of the drive by the Defendants to remain known as a family orientated and family friendly club. As I have said, he conducted the appeal. One of the things which caused alarm for him during the course of the appeal was the apparent lack of concern of the Claimant for the reputation of the club evidenced by his lack of an apology and lack of contrition. He does not deny, however, that the Claimant readily appreciated the club's commitment to families and children. I also remind myself of course that the club itself has not issued an apology.
96. He himself went to great trouble to learn how Twitter works and pointed out that the offending would not necessarily have been seen by all of Mr Mason's followers. It depended on the medium they used to receive their tweets, the number of people they follow and how often they read their tweets to name but three.

The law

97. The question of what amounts to gross misconduct is one which has attracted the attention of the courts perhaps unsurprisingly on a number of occasions. The right of summary dismissal arises when the employee commits a repudiatory breach of contract. In those circumstances the employer has the option of either waiving the breach or treating the contract as having been discharged by the breach.
98. The question here is whether the employee's breach of contract, if there was one, was repudiatory in the sense of being sufficiently serious to justify dismissal. If it was not sufficiently serious then the dismissal is wrongful.
99. Mr Budworth in his skeleton arguments refers to the dictum of Lord Evershed the Master of the Rolls in Laws v London Chronicle [1959] All ER 285.

"The question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. One act of disobedience or conduct can justify dismissal only if it is of a nature which goes to show that the servant has repudiated the contract or one of its essential conditions and, for that reason therefore, I think what one finds in the passages which I have read that the disobedience must at least have a quality that it is wilful. In other words it connotes a deliberate flouting of the essential contractual terms."

100. Essentially the test is as Lord Evershed puts it whether the conduct has such a deliberate disregard of the conditions of service that the master (or employer in this day and age) is entitled to say "I accept your repudiation by treating the contract as ended and I summarily dismiss you".
101. The question posed by Lord Justice Edmund Davis in Wilson v Racher [1974] IRLR 114 was

"does the conduct make it impossible for the continuance of the master and servant relationship and show that the employer was resolved to follow a line of conduct that makes the continuation of that relationship impossible? In that case the court was not prepared to find that the employee's conduct in swearing at her employer was a deliberate flouting of the essential contractual terms.

102. In Freeth v Burr an 1874 case it has to be said, the court formulated the test of whether the conduct amounted to an intimation of an intention to abandon and altogether refuse performance of the contract.
103. And in Ross T Smythe & co v Bailey & sons [1940] 3 All ER [60] at page 71 Lord Wright said that repudiation of a contract is a serious matter not to be lightly found or inferred.
104. Mr Wilson cites Briscoe v Lubrizol [2002] IRLR 607 and Neary v Dean of Westminster [1999] IRLR 288. Conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.
105. Mr Wilson also emphasises the position of the Claimant as a role model. This is important in characterising the relationship between the club and the Claimant. That position and the fact that the club regards its reputation so highly creates, he says, a fiduciary relationship of trust and confidence which renders the Claimant's conduct in this case in not promptly removing the tweet a fundamental breach of that trust and therefore the employer/employee relationship.
106. In particular he takes me to paragraph 19 of the judgement in Neary which is a European Court of Justice case.

"The senior members of that institution [that is Westminster Abbey] are entitled to expect from one another a degree of openness and integrity which might not necessarily be expected in a commercial organisation."

107. Later on in the same paragraph:

"The character of the institutional employer, the role played by the employee in that institution and the degree of trust required of the employee vis-à-vis the employer must all be considered in determining the extent of the duty and the seriousness of any breach thereof:"

108. The test to be applied must vary with the nature of the business and the position held by the employee. He refers me to the extraordinary lengths the club went to make it clear that a high degree of moral turpitude was integral to the relationship. Clause 5e, the work of Robbie Hunter-Paul, the speeches at which the Claimants had been a member of the audience, the documents to which I have already referred he says are evidence of that. He argues that these factors, to use his phrase:

"Conditioned the nature of the Claimant's obligation to make the need to act in an appropriate way on and off the field and not to damage family values an essential part of the performance of the Claimant's contract."

109. He refers me to paragraph 22 of Neary.

"Does the conduct show the servant to have disregarded the essential conditions of the contract of service? Does it undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment?"

Conclusion as to repudiatory breach

110. On the authority of Laws v London Chronicle [1959] All ER 285 to which I have already referred I have to say it is difficult to see how this event can be regarded as a deliberate flouting of contractual obligations. Nor, it has to be said, do I accept them as a flouting of essential contractual obligations.
111. The Claimant on any view did not deliberately do anything. At best he omitted to do something namely remove promptly a tweet he had not posted of a photograph he had not taken.
112. Of course I do not deny that an omission in itself can be deliberate and wilful but I do not see this omission as being in that category. It seems to me, on the facts, that it is much more likely than not that on the Tuesday afternoon and indeed the Wednesday he would not have been thinking rationally. He had after all been drinking without respite consistently for almost 48 hours. The club knew this happened and indeed that it happened every year. They had not put their foot down to stop it. Indeed the evidence of the Claimant at paragraph 6.9 page 201 of his statement which is unchallenged is that there is actually a training session on the Thursday following Mad Monday even though the season has finished so that:

"The players can in effect get the alcohol out of their system from Mad Monday and in effect get a message that the players are going back into a normal routine."

113. As a fact I accept that the Claimant removed this tweet when he became aware of it without being told. I do not dispute Mr Shuttleworth's evidence but I do not see that it necessarily is inconsistent with the Claimant's evidence when Mr Shuttleworth is unable to say when he spoke to the Claimant.
114. Mr Wilson says that that time can be fixed by a combination of Mr Thewlis' evidence and Mr Shuttleworth's evidence. Mr Thewlis saying that he spoke to Mr Shuttleworth on the Wednesday morning, I think, and Mr Shuttleworth's evidence that he spoke to the Claimant within 15 minutes. I do of course see strength in that but, of course, the Defendant's dismissal letter itself implies that the Claimant removed the offending tweet himself without prompting.
115. In any event, in case I am wrong on that, and that the Claimant was told to remove the offending tweet, on any view, he did so. Mr Wilson says not immediately but where is the evidence of that?
116. The fact is that when the error of his ways was pointed out to him the Claimant sought to correct it. I cannot except that such conduct is deliberately flouting the terms of his contract. On the contrary it may well be seen as an effort at damage limitation.
117. I have mentioned that I do not see this as a breach of the contract's essential conditions. When all is said and done the Claimant was employed as a rugby player. The offending conduct took place outside his place of work and indeed outside his hours of employment although I accept that that is not necessarily determinative.
118. I acknowledge and applaud the club's concern to guard its reputation as a family club and the clauses in the contract that I have referred to and the leaflets and the PowerPoint presentations and the speeches which are all designed to emphasis the role model nature of the club's players is very much a good idea. However, the fact that the club goes along with Mad Monday but, in particular, seems to turn a blind eye to the naked runs in public, does not sit comfortably in my judgement with this reputation and a jealousy to unswervingly retain family values that the club seeks to promote. It suggests that, while these family values are important, the essential terms of the contract are those that focus on the Claimant as a rugby player.
119. Let me make it clear that in making this comment I do not understate the importance of clause 5e and the need for decorum by the club's players and indeed any club's players. Nor do I suggest that lack of decorum could never justify a dismissal.
120. In this particular case there was one act of misconduct, and one act of disobedience or misconduct. On the authority of the Laws case one act can only justify dismissal if it is of a nature which goes to show that the servant has repudiated the contract or one of its essential conditions. I go back to the point made above. Even on the Defendant's case he acted in accordance with their instructions to remove the tweet even if there was something of a delay in doing so.
121. I ask myself rhetorically how can that be seen as repudiation of an obligation to behave with decorum and dignity? And the answer which I give myself is that it cannot.
122. Also I do not see that the tweet "it's defo not me" can be seen as Mr Wilson suggests as validating the first offending post or tweet. It is after all preceded by the words "Lads, really not cool". Admittedly that may be a re-tweet from Gavin Wilson but the fact that it is re-tweeted is an indication that it is adopted by the Claimant so rather than validating the first posting it can be seen equally to pour scorn on the first tweet. Not enough scorn perhaps to cause the Claimant to remove it but validating it is, in my view, putting it too strongly.
123. Furthermore and in any event I am not convinced that this tweet can be seen as being inextricably linked to the club. I accept, albeit that I have heard no real evidence of it, that the majority of the Claimant's followers are Giants fans. I even accept that somewhere on his tweet account there is his biography in which he is described as a Giants player but I think it is very unlikely that any fan seeing this tweet and, assuming that they recognise it for what it is would assume that this tweet is condoned by the club. It seems to me that even the complainants who wrote in do not think that. None of them has complained about the club's conduct but rather they complain about Keith Mason's conduct. They themselves have drawn a distinction between the club and the individual.
124. In addition, as I have said, the club on more than one occasion have not seen fit to apologise or even to announce that it has taken disciplinary action or required the Claimant to do so. One might have thought that they would have done this if they did truly think they were being tarred with the same brush.
125. It is also worth pointing out that this is the Claimant's own Twitter account not a club Twitter account and he tended to use it for general social communications independent of his employment as well as tweeting the club's events or matters which may be of interest to Giants' fans.
126. The fact that the Claimant's message did not contain a disclaimer in my view is neither here nor there when it is accepted as it is that he did not actually send the offending tweet. I therefore have no difficulty in finding that the Claimant has established on balance that this was a wrongful dismissal.

The reasons for dismissal

127. I reach that conclusion even without consideration of the background issues revolving around the signing of other players and the Wakefield negotiations, Mr Wilson is right, I think, that even if the club wanted to get rid of the Claimant that is irrelevant. The issue is fundamental breach of contract, pure and simple. It matters not if the club welcomed the opportunity of dismissing him. What matters is whether they were entitled to do so. However, I am satisfied that this club was keen for the Claimant to go. The emails and the letter to Martin Shuttleworth concerning the Wakefield deal cannot, in my view, be sensibly interpreted in any way other than a desperate attempt to convince Martin Shuttleworth to convince the Claimant to go. And the first paragraph on the second page contains an implication it seems to me that the Claimant may well not be making the first team for the remainder of his contract.
128. The arguments put by Mr Thewlis that he wanted the Claimant to stay but felt obliged to tell him about the offer on the basis that a disgruntled player can infect the team is no answer. I accept the point that he makes that an unhappy player, especially a senior player can cause an unhappy dressing room but this was not an unhappy player. He did not want to go, he wanted to stay. The efforts revealed by the emails and the letter are all intended to convince him that it is in his interests to go. I also agree that the evidence suggests that there were significant numbers of props who were available to fill the space left by him if he did go.
129. I really do not feel that I need to address at length issues concerning the salary cap in this context. I do not know whether a margin of 0.7% of the salary cap is common or not as Mr Thewlis suggests. But I do not accept that a wage bill which comes within 0.7% of the cap is a comfortable accommodation of the cap when there is a player who quite clearly on the evidence of the Wakefield events the club is happy to see go and who accounts for one sixteenth of a cap applicable to 25 players.

Quantum

130. Let me say that I find this difficult. I have derived some assistance from the evidence of Mr Fielden and Mr Shuttleworth who have given opinion evidence and of course I have heard to some extent on this from the Claimant.
131. I raised with counsel the fact that much of the line of questioning which was being put to, in particular, Mr Fielden and Shuttleworth put them into the position of experts and that there was no permission in this case for expert evidence.
132. Neither have any of the obligations contained in CPR part 35 been addressed in the sense that there are no reports, no declarations of impartiality etc, etc.
133. Both counsel were content for me to hear opinion evidence from these witnesses and I have done so on the basis not least that it is important for compliance with the overriding objective in keeping the length of the case and the costs of the case proportionate.
134. Damages seem to me to fall into two distinct areas. The first is the loss sustained by the Claimant by reason of the breach of the contractual terms set out in his contract. The second area is to consider whether the Claimant has been deprived of the chance of a testimonial.
135. I have been provided with a schedule of loss by the Claimant but no counter schedule and neither skeleton argument actually addresses quantum.
136. I do not have any expert evidence in the usual sense as to what the Claimant could expect to attract in the way of interest and therefore salary for the balance of the term of his contract but the parties, as I have said, are anxious for me to do the best I can on the evidence available.
137. The fact is that the contract in respect of which the Defendants are guilty of breach was a 4 year contract providing for a salary of £95,000 in seasons 2012/2013 and £97,500 in seasons 2014/2015 provided the salary cap was increased in those final years to a figure over £1.65 million.
138. There is now a dispute as to whether the salary cap has increased for the 2014/2015 seasons. I had hoped that that at least would not be an issue but an email received today from the Rugby Football League reads as follows:

"The salary cap in 2014 can be summarised as follows: £1,825,000 finite cap plus elite squad representation allowance which is a club by club allowance depending on the number of players supplied France and England night squad. 2014 the second tier long service allowance and club trading allowance have been removed and the £175,000 that these allowance represented have been moved into the finite cap with no restriction on the number of players to fall within this (previously 25). There has in effect been no increase in the size of the salary cap rather a number of allowances and the second tier cap have been removed to simplify the regulations."

139. So that on the one hand the email says that the cap has been increased but on the other the cap stays the same. The conundrum arises as I understand it and put simply because the cap for the first and second team players has been amalgamated so that the second team players (and some allowances which were originally outside the £1.650,000 cap for the purpose of arrogating relevant salaries) are now in it. Those amounted to £175,000. When the £175,000 is added to the £1,650,000 it comes to £1,825 000. So the amount of the pot is the same but the clubs have more flexibility as to how to spend it. They can spend more on first team players at the expense of second team players.
140. The question really is, bearing in mind the terms of the contract, if the Claimant was still at Huddersfield at the start of the 2014 season could he have insisted on a salary increase? It may well be that that itself could occupy a court for a couple of days but the relevant part of the contract is at page 270. It simply says:

"The increase to £97,500 in the final two years of the contract is conditional upon the salary cap being increased above £1,650,000. If not then the salary will remain at £95,000 throughout the contract."

141. Construing it purposively the change in the rules gives the clubs more money to play with for first tier players if they are prepared to do so at the expense of their second tier players. This contract clearly covers (I will be corrected if I am wrong but I doubt that I am) a first team player. The cap has increased from £1,650,000 to £1,825,000 in that sense even if it has not increased in another sense. So they are able to pay the claimant more if they choose to do so.
142. Additionally, in so far as there is ambiguity then it seems to me that on ordinary contra proferentem principles it ought to be construed in favour of the Claimant, in which case the salary for the final two years would have been £97,500.
143. He was dismissed just short of the first year into the contract. I am told that at the point of dismissal he had been paid £80,164 and so the starting point for his loss in the 2012 seasons is the difference just short of £15,000.
144. Mr Wilson has handed up during the course of his submissions a draft counter schedule which covers his understanding of the gross loss in the period up to the expiration of the first year of the contract which I think comes to that figure. I do not know whether that is agreed by Mr Budworth, but seems to accord roughly with his schedule.
145. It is difficult to see how he could have mitigated that loss which occurred in the 2012 season. In respect of the 2013 season he has entered into a one year contract with Castleford Tigers but at a much reduced salary of £41,500. Mr Wilson did not mention it in his final submissions but it seems to me that it would be appropriate to deal with the question of whether the Claimant has mitigated his loss by taking a contract at that rate.
146. He has no contract currently for 2014/2015 which would have taken him to the end of his Huddersfield contract. He does not suggest that he will not gain employment in that period the issue is simply at what salary. He must of course give credit for salary received or likely to be received by him from other employers during what would be the remainder of his Huddersfield contract.
147. In addition he argues that the dismissal has deprived him of the chance of a testimonial. I have no evidence of what that would earn for him if he were in fact awarded one other than what the Claimant himself tells me. And indeed it is by no means certain that he would have got a testimonial in any event. I will deal with that separately. Let me first deal with the Castleford contract and the question of mitigating his loss in the 2013 season.
148. He is 31 years old. He has been a top flight player since his teens. He was awarded the coach's player of the year in 2009. He is a challenge cup winner and he has played in the Giants' first team for seven successive seasons. The Giants are seen as a good Super League side. All these factors add to his financial power.
149. On the other hand he became a free agent in October 2012 at a time when most clubs would have done their recruiting for the following seasons and will have negotiated terms with their players with the salary cap in mind. His evidence was that he hit the market therefore at a most disadvantageous time and I accept that.
150. In addition he came into the market from a position of personal weakness. The clubs will have known that he had no contract with Huddersfield and that, unless he did a deal, he would not be playing top flight rugby and they knew therefore that essentially they held all the cards. They would have known in particular that he needs to maintain a profile, he needs to remain visible if he is to retain marketability going forward; that was his evidence and I accept it.
151. In addition it is the evidence of Mr Shuttleworth. There is some dispute as to who negotiated the Claimant's contract at Castleford. Mr Shuttleworth is under the impression that he did. It is the Claimant's evidence that by then he dispensed with Mr Shuttleworth's services and the contract was negotiated by Mr Richard Cramer a solicitor and sports agent. It matters not. The point is that Mr Shuttleworth does not believe that the Claimant could have done better for the 2013 season than £41,500 in the circumstances. He says that it is low and that it is unfair but essentially that is how it would be because he found himself in a buyer's market.
152. Mr Thewlis did not give any evidence on this issue and nor did Doctor Morgan but it seems to me that, for the reasons given, as to why the Claimant had to accept a contract at £41,500 are cogent. In reality he was over a barrel and it was entirely understandable from other club's point of view that they will have taken commercial advantage of that.
153. In addition it has to be said it seems to me that there is absolutely no incentive on the Claimant to settle for a contract paying less than he could actually get. The job he has to do is the same whether he is paid £41,500 or twice that amount. I have no doubt that the training and the knocks that one has to endure hurt just as much at £41,500 as they do at £95,000. Why would a Claimant take less if more was on offer elsewhere?
154. I am satisfied in the circumstances that he has mitigated his loss for the 2013 season.
155. As regard 2014 and 2015 once again he will be a free agent so there is no club to fall back on and those clubs with whom he will be negotiating will know that. Secondly he will be 32 although I note that Mr Shuttleworth argues that a prop at that age is in his prime. He has, however, had a couple of niggling injuries this year which have caused him to miss, I think, 6 of the available 21 games and in addition he will be starting from much lower base cost of £41,500.
156. On the other hand he will have more time to negotiate so that clubs that are attracted to him can factor his wage into their salary cap and they can also devise a shape to their team which may include him.
157. The Claimant takes the view, balancing the pros and the cons, that all this would probably result in a contract around the £45,000 to £50,000 region per year for the remaining 2 years. He was clear that he will not command anything like £70,000 which was the suggestion of Mr Shuttleworth.
158. Mr Fielden offered some evidence on this issue. He has been in the game a long time and he came over as an articulate and intelligent man with an understanding of the market forces at work. He did not for example feel the need to employ an agent for his current contract with Huddersfield. He clearly had the confidence to do it himself. He is 33 and coming to the end of what has been a very illustrious career. He has been a regular choice in the GB team in the past and was generally recognised as one of the best props in the world. He has 4 Super League winners' medals and has appeared in no less than 14 finals. In 2007 he was named in Bradford's team of the century. He now plays for Huddersfield for £55,000 a year plus bonuses.
159. It is true to say however that, before his release to Huddersfield from Wigan, injury prevented him from playing more than two first team games in 2 years but his contract at Huddersfield has been signed at £55,000 per year on the basis that he is fit to play. He earns less if he is injured. On the other hand five clubs were interested in him but £55,000 was all he could command.
160. It is acknowledged that he is in a different position to the Claimant, he acknowledged that but nevertheless the Claimant he says will still be subject to the ordinary laws of supply and demand. The involvement of Australian Rugby is not in his view to be ignored. It has two effects, first is that, if the Claimant plays well enough, he may be able to get a contract in Australia. He has after all already played down there albeit some time ago. Secondly the handsome wages that are paid by Australian clubs means that other props may be attracted to the Antipodes reducing the supply of props in this country and thus increasing their value. It appears to be recognised that a club needs more players to fill prop positions then any other position.
161. On the other hand his view was that the Claimant was not setting the world alight at Castleford. He was not a top performer. Taking into account those factors he did not think that he would be able to attract more than say £55,000 for the 2014/2015 seasons.
162. As I have said Martin Shuttleworth felt that the Claimant could command £70,000 - £80,000 for those 2 years. He too mentioned the shortage of props because of the prop drain, if I may call it that, to Australia and the fact that Super League clubs these days need about 6 or 7 front row forwards. On the other hand he suspected that in 2015 the Super League would reduce from 14 to 12 clubs putting perhaps 12-14 props on the market thereby increasing the supply and lowering their value.
163. He was also exercised by the fact that 50% of the clubs in the Super League are actually struggling to make ends meet but he felt that the Claimant was a quality, experienced prop. That props are in their prime between 28 and 32. They are battled hardened and finely tuned and the Claimant he thought has always looked after himself and was enthusiastic and dedicated and that he can probably go on well into his mid 30s and he thought these qualities counted sufficiently in his favour to push up his value to the level which he suggested. On the other hand, it is a fact that, as he gets older, he will have to compete with new lads coming through the ranks who will be snapping at his heels.
164. Of course as I have said I do not have any expert evidence in any Part 35 sense and I have to appreciate that Mr Shuttleworth is not entirely independent. He works closely with Huddersfield. Mr Thewlis says that he speaks to him about players for whom Mr Shuttleworth is an agent multiple times a day. Mr Fielden on the other hand has, it seems to me, much less of an axe to grind albeit that he is a Huddersfield player. What he and the Claimant have to say about future prospects seem to me to be cogent.
165. Doing the best I can therefore without any form of expert evidence- and recording specifically that this is how the parties wish me to deal with it- I am satisfied deriving some assistance from the evidence of Mr Fielden's contract itself that it is more probable than not that the Claimant will be able to command a salary of £55,000 over 2014/2015 season. He may not have Mr Fielden's pedigree on the field but he appears to be less injury prone albeit that he himself is not without injury. This therefore means by my calculations a loss in 2014/2015 on a gross basis of £42,500 per year.
166. Finally I turn to the issue of the testimonial. First it is important to note that this contract does not provide for one not least because it is not in the gift of the club to provide one, it is in the gift of the RFL. But Mr Wilson recognises that a consideration of the issue of a testimonial is not a contractual based issue. It is an issue as to whether the Defendant's conduct has deprived the Claimant of the chance to earn a testimonial and, if it has, there then has to be an assessment of how big that chance was.
167. I have been referred to the RFL rules:

"In order to receive approval for a 12 month testimonial (this is a testimonial that runs for a 12 month period) a player must meet the following criteria:

(1)Be a good character on or off the field

(2)Have been of service to the community over and above contractual duties

(3) And have served one club at first team level for a continuous period of 10 years where have played no less than 300 first team games not necessarily with the same club but showing some consistency of service over the period."

168. There are some notes:

"The 300 games do not have to be served in a continuous period with one club in the modern game 300 games is a considerable achievement, however, it is unlikely that applications would be approved for players who had moved from club to club each year. There would need to be some consistency of service over the 300 games."

169. There is something called a short term 3 month testimonial however. These may be granted to those who meet (1) and (2) above, that is good character on and off the field and have been of service to their community over and above their contractual duties but who have not met the third criteria that is 300 first team games with consistency of service. In those circumstances a player may then qualify for a 3 month testimonial provided he has served 300 first team matches with a large number of clubs.
170. It is true that the Claimant has had niggling injuries and has missed 6 games this season at Castleford. I take that into account on the basis that the past is some evidence of what will happen in the future but it seems to me that notwithstanding that, there is a better than average chance that he will play the additional games needed to achieve the 300 Super League's first team games threshold. I say that because he has already played 259 first team games and has the remaining 7 games of this season and two further seasons consisting of 27 games per season in which to meet the 300 threshold. So there are 61 available games and he has to play a further 41. As I have said he has some niggling injuries which have resulted in him missing 6 games this season but it seems to me that there is still a significant margin of safety there which would enable him to meet the threshold.
171. However, whilst I think it is more likely than not that he will still meet the 300 first team criterion mark there is still the question about whether the RFL will take the view that he has served the community over and above his contractual terms and there are the questions of his good character. I make it clear that, whilst this tweet did not justify dismissal, it was not sensible and may have attracted some sort of reprimand or other disciplinary action by the club.
172. However, it seems to me that the chance that he will now be able to satisfy the RFL in whose gift this testimonial is that he has the necessary consistency of service for a 12 month testimonial is now doubtful. A Wikipedia search conducted by Mr Shuttleworth at what I have numbered 471 of the bundle shows that he has accumulated his current 259 appearances over 5 clubs but, as a result of the defendants conduct he is may well have to achieve his target through more clubs. I have no evidence from the RFL or from any expert as to whether 300 appearances over 5 clubs is sufficient consistency of service for 12 month testimonials or whether that would be regarded as a large number of clubs as envisaged by the short term 3 month testimonial criteria. I note that averaging out his appearances since his first team appearance in 2001 to the end of 2015 there would have then been 5 clubs over 14 or 15 years. It averages out at roughly 3 years per club. I do not know whether that is sufficient consistency to justify a 12 month testimonial but if it is, the fact that he may now obliged to reach his 300 games with more clubs is decidedly disadvantageous for him.
173. I have been referred to the case of Mount v Barker Austin (a firm) CA (1998). The court in that case took the view that generally speaking one would expect the court to tend towards a generous assessment given that it was the Defendant's negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. This case did not concern negligence it concerns breach of contract but Mr Budworth suggests the principles are the same and Mr Wilson has not suggested otherwise.
174. Taking that into account and even erring on the side of generosity my conclusion is that it is unlikely he would have qualified for a 12 month testimonial even at Huddersfield but, by virtue of the fact that he will see out his career with a club with whom he has not spent much time and they and more importantly the RFL may not feel the obligation to him that they would to a long serving player, there is a 70% chance that he has lost the prospect of a 3 month testimonial.
175. Once again I have no evidence to help me as to what that loss would be. Mr Shuttleworth did not address the issue of what could be earned in a testimonial nor indeed did Mr Kopczac, Mr Fielden or Mr Thewlis. Only the Claimant touched on the amount that he could earn. He spoke of some colleagues getting £60,000 over a 12 month testimonial. He felt that, if he were granted a 12 month testimonial, he could have been up there with them because he has celebrity connections in the shape of Joe Calzaghe and Mickey Rourke who would have used their pulling power at testimonial events. He was not challenged on this evidence but that was £60,000 over 12 months. He would have only 3 months. On the other hand I accept that it is not realistic simply to divide £60,000 by four. There is no reason to suppose that one cannot pack in a great deal more proportionally in 3 months than one can in 12. A simple analogy is that there are plenty of part time workers who believe that they do as much in three days as full timers do in five. Nevertheless there is a limit on what fundraising events can be put on when you are appealing to people's pockets and so, merely because there is only three months, does not mean that you can consistently hold events which attract revenue.
176. Doing the best I can and using the £60,000 as a base for 12 months on the basis that that is what is being earned by others and he has the celebrity connections and on the basis that that figure was not challenged I find that he would have made £20,000 over a 3 month period. 70% of £20,000 is £14,000.
177. In summary therefore and this can be corrected or checked by counsel, the loss is £6,895 for October 2012, £7,916 for November 2012, £53,500 for the 2013 season, £42,500 each for the 2014 and 2015 season and £14,000 for the testimonial making a total of £167,311 in gross terms. The schedule suggests that there needs to be some calculation done to assess how that translates into actual damages. I also question whether there needs to be some discount for accelerated payment.
(Discussion between Judge and counsel not transcribed)
178. Upon it being recorded that the court finds that the Claimant has been wrongfully dismissed and that gross damages arising therefrom amount to £167,311 but that no account has yet been taken of the incidence of tax and discount for accelerated payment and that the parties shall agree to liaise with a view to calculating the amount for which judgment shall be given to reflect those issues it is ordered:

Adjourn until next available date after 5^th August in accordance with details of availability of counsel filed by 19^th July.

The Defendant do pay the Claimant's costs of the action. The issue of the extent to which there shall be indemnity costs shall be determined at the adjourned hearing.

The Defendant do pay the Claimant £35,000 on account of costs.

End of judgment