Neutral Citation Number: [2014] EWHC 3000 (QB)
IN THE HIGH COURT OF JUSTICE
Claim No.3MA40026
QUEEN’S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
MERCANTILE COURT
(Draft judgment circulated 29 August 2014)
Date: 15 September 2014
Before:
HIS HONOUR JUDGE WAKSMAN QC
(sitting as a Judge of the High Court)
BETWEEN:
ANTHONY MCGILL
Claimant
and
(1) THE SPORTS AND ENTERTAINMENT MEDIA GROUP
(2) JEROME ANDERSON
(3) JEFFREY WESTON
(4) DAVID SHERON
(5) BOLTON WANDERERS FOOTBALL CLUB
(6) PHILIP GARTSIDE
(7) SIMON MARLAND
(8) SAMUEL LEE
(9) FRANK MCPARLAND
Defendants
Martin Budworth (instructed directly) for the Claimant
Lisa Walmisley (instructed by IPS Law, Solicitors) for the First to Fourth Defendants
Neil Berragan (instructed by Brabners, Solicitors) for the Fifth to Ninth Defendants
Hearing dates: 7-11, 16-17 and 22 April and 5 June 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
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INTRODUCTION
1.
The Claimant in this action, Tony McGill, is a licensed football agent. He contends that in
April 2007 he made a binding oral agreement with Gavin McCann, a footballer then with
Aston Villa, to find him a new club and negotiate terms for him as his exclusive agent. Mr
McGill says that he did so and put together a deal for Mr McCann’s transfer to Bolton
Wanderers Football Club (“Bolton”), the Fifth Defendant. However shortly before that deal
was formalised, the First Defendant, the Sports and Media Entertainment Group (“SEM”)
which also provided agency services, found out about the deal from Mr McCann and prised
him away. It then entered its own written contract with Bolton (made on 8 June but dated 1
June – “the SEM Agreement”) to find a player for that club, the player being Mr McCann.
He subsequently joined Bolton on essentially the same terms as Mr McGill had already
secured. SEM thereby earned £300,000 without having to do any real work and Mr McGill
lost out on the fee he would have earned in a similar amount. Moreover, Bolton connived
with SEM to bring about this result.
2.
The Second Defendant, Jerome Anderson, was the CEO of SEM at the time. The Third
Defendant, Jeffrey Weston, another licensed football agent, was employed by SEM and the
Fourth Defendant, David Sheron was also employed by SEM although not a licensed agent.
The Sixth Defendant, Philip Gartside, was and remains Chairman of Bolton, the Seventh
Defendant, Simon Marland was Bolton’s Club Secretary, the Eighth Defendant, Sammy Lee
was its Manager at the time, and the Ninth Defendant, Frank McParland was its General
Manager.
3.
Mr McGill relies upon a variety of causes of action, namely:
(1)
Inducement to breach of contract (as against SEM, Mr Sheron, Bolton and Mr
McParland);
(2)
Breach of confidence (as against SEM and Bolton);
(3)
Conspiracy to Injure (as against all Defendants);
(4)
Conspiracy to use Unlawful Means (as against all Defendants);
(5)
Unlawful Interference (as against all Defendants), and
(6)
Quantum Meruit (as against Bolton).
4.
Such claims are all designed, in their own ways, to capture Mr McGill’s essential grievance
set out above. His claim in damages and for quantum meruit is now put at £300,000. An
alternative claim for an account of profits was abandoned at the end of the trial.
5.
I have been considerably assisted by the written opening and closing submissions of all
counsel and their oral closing arguments, all of which I have considered.
PROCEDURAL HISTORY
6.
Following the transfer of Mr McCann to Bolton, Mr McGill made a number of complaints to
the Football Association (“the FA”) but these did not result in the FA taking action against
anyone. On 20 November 2007 Mr McGill commenced proceedings against Mr McCann
alone in the Newcastle County Court, seeking damages for breach of contract (“the McCann
Action”). It was subsequently transferred to this Court. Witness statements were filed by,
among others, Jack Chapman, a football scout employed by Bolton who had retired by mid2007 but stayed on part-time, Chris Lumsdon, a footballer, Ricky Spragia, First Team Coach
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at Bolton when Mr McCann joined, Joshua McGill, Mr McGill’s son and Martin O’Neill,
Manager at Aston Villa ("AV") at the time of Mr McCann’s departure, all on behalf of Mr
McGill; and by Mr Weston, Mr Lee and Mr Marland on behalf of Mr McGill. Mr Anderson
and Mr Gartside were made the subject of witness summonses issued on behalf of Mr
McGill. The trial was due to start on 7 September 2009 but on that day it settled with Mr
McCann paying £50,000 to Mr McGill, whose legal costs by then (according to him) were
£155,000. Within days he had intimated claims against Bolton and SEM.
7.
In fact, the present action was not commenced until 26 July 2012, initially in Newcastle and
then transferred to this Court. At that stage Mr McGill was acting in person although it was
plain from the Particulars of Claim that he must have had the assistance of a lawyer in
drafting them. Following an initial exchange of statements of case, the First to Fourth
Defendants (“the SEM Defendants”) and the Fifth to Ninth Defendants (“the Bolton
Defendants”) applied to strike out the claims against them. I allowed those applications in
part only on 1 May 2013, and on 28 May and 7 August 2013, I gave permission to Mr
McGill to file and serve an Amended Particulars of Claim which was done on 23 August
with consequential statements of case following. By this stage Mr McGill had instructed
solcitors and counsel although his solcitors subsequently came off the record and counsel,
Mr Budworth, was then instructed on a direct access basis. On 21 March 2014 the Bolton
Defendants served a Part 20 claim form against the SEM Defendants seeking a contribution
or indemnity and/or payment of the £300,000 which Bolton had paid to SEM, in the event
that Mr McGill should succeed in his claim against any Bolton Defendant.
8.
The Defendants vigorously deny each and every claim made against them.
9.
Shortly before this trial commenced, and by application made in late March, Mr McGill
applied to re-amend the Particulars of Claim. The core amendment was to the claim alleging
conspiracy to use unlawful means. It sought to add two new unlawful means, being forgery
and/or fraud because of the backdating of the SEM Agreement and because the SEM
Agreement, while ostensibly between SEM and Bolton, was in truth an agreement between
SEM and Mr McCann. This application was resisted by all Defendants.
10.
Having heard the application initially on the first day of the trial, I considered that on any
view the proposed amendment was insufficiently particularised and so it was left to Mr
McGill to renew his application at a later stage. In the meantime, the trial commenced. Mr
Budworth subsequently produced a revised amendment. In relation to that I adopted the
pragmatic approach suggested by Mr Berragan for Bolton to defer consideration of the
amendment issue until the end of the trial, while making clear that certain lines of crossexamination which might not otherwise have been open to Mr Budworth, could be pursued.
In the event, no point was taken on any of the questions which he asked relating to these
issues. In course of closing submissions all Defendants reiterated their opposition to the
amendments but were content for me to deal with the grant or otherwise of permission to
amend, and if granted, the merits of the amended claim, as part of this judgment.
11.
In addition a further amendment was made prior to oral closing submissions which was
accepted. This modified how the loss was claimed so as to state as follows:
“…But for the acts complained of the Claimant would have received a commission for brokering the
transfer deal. He would have received it by reference to his contract with Mr McCann under which he
had been appointed as his exclusive agent. That contract would have been reduced to writing at the
time that the deal was completed, for regulatory purposes, as part of the collation of the various
documents to be lodged with the Football Association. Alternatively, if (which is denied) the
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agreement with Mr McCann reached on 6 April was not already legally binding it would have become
so when it was reduced to writing which would have happened but for the fact that the Claimant was
ousted. But for the acts complained of he would have participated in the completion of the formal
documents surrounding the transfer and would have been declared to the Football Association as the
agent who had acted in the transfer.”
12.
Accordingly, and whether a binding oral agreement was made or not, it is part of Mr
McGill’s case that a written contract (compliant with FA Regulations) would have come into
being at least by the time Mr McCann was signed up. Since this amendment to the existing
Amended Particulars of Claim was accepted without objection, and I allowed it, I shall refer
to the further amended statement of case as the Re-Amended Particulars of Claim.
13.
In addition to the McCann Action and this claim, SEM commenced proceedings against Mr
McGill for harassment in which he counterclaimed against SEM for harassment. They were
settled early this year.
THE NATURE OF THIS DISPUTE
14.
Although rendered more complex by the causes of action said to provide the legal
framework for Mr McGill's claim for redress, his basic case against the Defendants is simple
and has been made by him with considerable persistence since he was, as he would put it,
shut out of the deal. It has been advanced, he alleges, by the availability of important mobile
telephone records pertaining not only to him but to Mr McCann as well. It is necessary to
sketch it out here.
15.
Mr McGill knew Mr McCann before he met him at the Preston Marriott Hotel on 6 April
2007, when the agency contract was made. Mr McCann had already made known to him his
dissatisfaction with Aston Villa where his contract had only one year left to run. He had
been represented previously by SEM but had been let down when after a transfer he was
presented with a tax bill on the basis that while the receiving club had paid the fees he owed
to SEM, HMRC regarded that as a benefit in kind for which Mr McCann was liable to pay
tax. Mr McGill made a binding oral agreement with Mr McCann on that evening pursuant to
which he would act as his exclusive agent to secure him a deal elsewhere. If he had to pay
the fee personally it would be 5% of his new wages for the next 3 years but if the club paid it
would be 10%. He would seek wages for Mr McCann of around £26,000 per week which
was about £5,000 more than the existing wage (and Mr McCann was now approaching the
end of his Premiership career) and the purpose of that was to provide a financial cushion to
Mr McCann from which he could pay Mr McGill’s fee and/or any tax liability arising out of
it. I shall refer to this alleged agreement as the McGill Agreement
16.
Following that meeting Mr McGill set the wheels in motion and in particular on 7 May he
met with Mr O’Neill who gave Mr McCann verbal permission (through Mr McGill) to seek
a transfer to another club and on 12 May Mr O’Neill said that the transfer fee sought by
Aston Villa would be £1m. The next day Mr McGill and Mr McCann informally met with
Messrs Worthington and Chapman at Bolton so that they could show their interest in Mr
McCann. His terms were communicated to Mr Worthington as they were to various other
clubs the next day. All seemed to be proceeding but after a meeting at Wigan FC (another
contender for Mr McCann) Mr McGill’s suspicions were aroused because Mr McCann
called him knowing he had been to Wigan. He told Mr McGill that he knew this because Mr
Sheron (a close friend of Wigan’s assistant manager Chris Hutchings) had told him. Mr
McCann apparently said that he had told Mr Sheron that Mr McGill was acting for him. Mr
McGill nonetheless became concerned that Mr Sheron (a friend of Mr McCann) might be
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attempting to “poach” him and take over the transfer deal. Although he did not know it at
the time, the telephone records later obtained showed intense mobile phone contact between
Mr McCann and Mr Sheron at this time and up to when the transfer was done.
17.
On 28 May Mr McCann told Mr McGill that Mr Sheron had arranged a meeting for him
with Mr Lee at Bolton. Mr McGill swung into action and tried to speak with Mr Lee who
referred him to Mr McParland. When he spoke to Mr McParland, saying that he was acting
for Mr McCann, the latter asked “what’s the deal” and Mr McGill gave him the terms
(again, since he had already informed Bolton of this) and Mr McParland agreed they would
be acceptable if there was not too much deviation. Mr McGill later reported back to Mr
McCann. However on 7 June, Mr McCann called Mr McGill to say that Mr McParland had
told him to use Mr Sheron (instead). Later that day Mr McCann called Mr McGill and says
that “Dave is doing the deal” and ended by saying “I am sorry. I feel shit.” Subsequent
disclosure reveals that on 7 June SEM and Bolton agreed terms for Mr McCann’s transfer as
well as for SEM to act for Bolton as agent to secure him.
18.
The following day, 8 June, Mr McCann attended Bolton for his medical together with Mr
Sheron. The paperwork for his transfer and personal contract, though agreed by 8th, was not
actually signed by everyone until 11 June. But the SEM Agreement was signed on 8th.
Although various Defendants contended that the SEM Agreement was signed on 1 June in
accordance with its typed date and the manuscript date of 1 June which accompanied all the
signatures, by the time of trial it was agreed that it was signed on 8th but for some reason
(which no Defendant was able or wiling to explain) it was dated 1st. Mr McGill says that this
was (at the very least) a crude attempt to suggest to whoever might be interested that SEM
had been on the scene, acting for Bolton in relation to Mr McCann, earlier than was the case,
the reality being that all of this was “stitched up” only on 7 June.
19.
Mr McGill thus says that Mr Sheron on behalf of SEM persuaded Mr McCann to sack Mr
McGill, in breach of contract, and that Bolton, through Mr McParland, either persuaded him
also or on any view went along with SEM’s course of action knowing full well that Mr
McCann had a contract with Mr McGill and if SEM came in, it was inevitable that Mr
McCann would dismiss Mr McGill.
20.
In the absence of the alleged foul play, Mr McGill says he would have acted for Mr McCann
all the way through to his signing with Bolton at which point a written representation
contract would have been made under which Mr McGill would have been entitled to at least
£300,000.
21.
The Defendants deny that Mr McGill ever made a binding contract with Mr McCann,
thereby negating the foundation for his claims, Mr McCann having given evidence for the
SEM Defendants. This is either because the alleged discussion with Mr McCann leading to
his agreement that Mr McGill should act, never happened, or if it did, no legally binding
contract arose. And even if it had, SEM’s involvement with Mr McCann came about
innocently, as did Bolton’s, without any knowledge by either of any agreement between Mr
McGill and Mr McCann. Nor did either seek to tempt Mr McCann away from Mr McGill.
And on the question of loss, whatever may have been agreed orally, no written contract
would ever have emerged, or at least Mr McGill cannot prove that it would have done.
22.
Mr McGill’s retort is that while the Defendants have tried to give explanations as to how
they came to be involved with Mr McCann and did a deal on the same terms as Mr McGill
had already achieved, all without knowledge of his role, those explanations are inconsistent
5
with each other and/or do not add up. The only rational interpretation of events, in particular
in the light what has been disclosed, is that advanced by Mr McGill.
23.
While there are other issues in relation to particular causes of action, the central disputes in
this case are factual and require an assessment of the credibility of the witnesses, along with
what can be gleaned from particular documents and what inferences can properly be drawn
from the primary facts.
THE EVIDENCE
Witnesses
24.
For Mr McGill, I heard from Mr Worthington, Mr Lumsdon, Mr Spragia, Bolton's first team
coach in June 2007, Stephen Hughes, another football agent, Mr O’Neill, Joshua McGill,
Rosemary Gregson, who was Mr Marland’s PA at the time and Mr McGill himself. For the
SEM Defendants I heard from Mr Anderson, Mr Weston, Stephen Horner, another licensed
agent employed by SEM and Mr Sheron. For the Bolton Defendants, I heard from Mr
McParland, Mr Gartside, Mr Lee, Anthony Massey who is Bolton’s Finance Director and
Richard Fitzgerald the CEO of AV at the time. I also received a hearsay statement from
Brian Prestridge, Head of Analytical Development at Bolton.
25.
My detailed comments on the evidence of particular witnesses appears in context, below but
it is convenient to make some overall observations here: I thought that Messrs Worthington,
Lumsdon, Spragia, and O’Neill were honest and generally reliable witnesses. I thought Josh
McGill was honest and straightforward too, though obviously not independent. Ms Gregson
was clearly honest and doing her best to assist the Court. I considered Mr Anderson to be a
very unreliable witness: for example, his evidence about SEM’s prior involvement with Mr
McCann, changes to the SEM website and some other points was clearly implausible. Mr
Sheron was not a convincing witness – for example his evidence about what happened at
Wigan and his own role generally, was implausible. Mr Weston was unconvincing also. In
some cases he denied the obvious while his evidence on the emails of 7 June and the dating
of the SEM Agreement was highly implausible; and what he said he knew about the
activities of Mr Sheron was absurd. I did not find Mr Horner’s evidence to be particularly
helpful and sometimes it was confused as well as conflicting with Mr McParland’s on key
matters. Mr McParland was a better witness and often plausible though he was not very
clear about what he could remember of the important conversation of 28 May. Mr Lee was
not always convincing and there were significant elements in Mr Gartside’s evidence which
were unsatisfactory. Mr Marland was mainly credible. Mr McCann was a very
unsatisfactory witness and on occasion he was clearly untruthful. He also tended to evade
questions by invoking the mantra that he did not want to use an agent and therefore did not
use Mr McGill. As for Mr McGill himself, I thought he was basically credible although he
was prone to exaggeration sometimes (for example on the Wyscout document); and he could
also lose objectivity because he has become so engrossed with this case which has become
something of a campaign not only against the Defendants but also the FA. There are also
some inconsistencies in his various accounts which need to be dealt with.
Documents
26.
I have been assisted to a significant extent by a number of contemporaneous documents
including some emails and the various copies of the SEM Agreement. I have been very
greatly assisted by two sets of telephone records contained in Bundle K in particular the
itemised mobile phone bills for Mr McGill and Mr McCann over the relevant period. It also
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includes (at pages 1746 to 1765) a list of texts between Mr McGill and Mr McCann and
others and (where they are texts sent from or to Mr McGill) the contents of some of those
texts. They are very revealing in terms of the amount of contact between people at various
points as well as what was said. Some handmade graphs produced by Mr McGill then show
at pp1739 to 1743 the “spike” in contact (a) between Mr McGill and Mr McCann from
March to June 2007 and (b) between Mr McCann and Mr Sheron in May and particularly
June 2007.
THE FACTS
Representation Contracts and Agency Activities
27.
The FA’s Football Agents Regulations made on 1 January 2006 governed the position of
football agents at the time and impose duties on Clubs and Players in relation thereto as well
as upon Agents. The following provisions are material to this case:
(1)
By Article 2.2 an Agent meant a person who undertakes to facilitate the transfer or
registration of a Player from one Club to another or who undertakes to negotiate
terms of contracts between Players and Clubs;
(2)
By Art. 2.4 a Licensed Agent is an Agent holding an FA licence.
(3)
By Art. 2.6 a Transaction meant any negotiation or arrangement or deal intended to
facilitate the transfer of a Player from one Club to another or effect the negotiation or
renegotiation of terms of contracts between Payers and Clubs;
(4)
By Arts. 3 – 9 provision is made for the obtaining of a Licence for the Agent;
(5)
There are then three separate provisions dealing with "tapping up":
(a)
The first is in the section which imposes duties on Players. By Art. 10.10:
“Whilst under contract with a Club, a Player or any person (which includes but is
not limited to an Agent) on behalf of a Player, shall not enter into negotiations or
make any approach with a view to facilitating or effecting the transfer of that Player
to another Club, unless:
the Player's current Club has provided express written permission to do so;..”
(b)
The second is in the section dealing with the duties of Clubs. By Art 12.14:
“Whilst a Player is under contract with a Club, another Club or any person (which
includes but is not limited to an Agent) on behalf of a Club, shall not enter into
negotiations or make any approach with a view to facilitating or effecting the
transfer of that Player to another Club, unless:
the Player's current Club has provided express written permission to do so;..”
(c)
The third is in the section dealing with the Agents' duties. By Art 14.9:
“Whilst a Player is under contract with a Club, an Agent or any person his behalf,
shall not enter into negotiations or make any approach with a view to facilitating or
effecting the transfer of that Player to another Club, unless:
the Player's current Club has provided express written permission to do so;..”
(6)
By Art. 10.3 the Licensed Agent’s name and signature and number must appear on
any relevant contract where the Player used such an agent and by Art. 10.4 if no such
agent was used, that must be stated, too;
(7)
By Art. 12.2 the Club is under a duty to satisfy itself that an Agent is appropriately
licensed and/or entitled to act in such a capacity;
7
(8)
By Art 12.3 the Club is under a duty to satisfy itself that an Agent who purports to
represent a Player or another Club has entered into the requisite representation
agreement. (see Art. 14.12 below).
(9)
By Art. 12.4 the Licensed Agent’s name and signature and number must appear on
any relevant contract where the Club is represented by an agent and by Art. 12.5 if
no such agent was used, that must be stated, too;
(10)
By Art. 14.3 originals of the written representation contract must be lodged in triplicate with
the FA within 5 days of execution;
(11)
By Art. 14.4 the Licensed Agent may only be remunerated by one party to a
Transaction ie he cannot be paid by both Player and Club; but By Art. 14.5 this does
not preclude a Club from paying to the Licensed Agent the fee due from a Player
under the contract he has with the agent provided that the Player will remain liable
for any tax liabilities that arise;
(12)
By Art 14.5, Art 14.4 does not preclude payment being made by a Club to a Licensed
Agent on behalf of Player who has entered into a representation agreement with the
Agent;
(13)
By Art. 14.12:
“A Licensed Agent must have concluded a written representation contract with the Club or
Player, on the appropriate standard form agreement set out in the Appendices to these
Regulations. This document must contain the entire agreement between the parties. The
Licensed Agent..must ensure that a copy of this document is provided to the Club/Player
before the Licensed Agent provides any services to the Club/Player to which the terms
contained in the contract relate.”
(14)
By Art. 23.2 any dispute between a Licensed Agent Player and/or Club may be dealt with
between the parties under the FA’s own arbitration rules.
28.
An Explanatory Note on the work of an Agent set out a non-exhaustive list of activities for
which an individual needed to be a Licensed Agent. They include negotiating with a Club on
behalf of a Player, personally representing the interests of either, discussing the terms of
possible deals with Players or Clubs, and facilitating a Transaction by discussing the
availability of a Player with a Club. An individual who does not hold a licence may carry
out administrative duties including providing normal secretarial support to a Licensed
Agent, arranging (for no charge) meetings between a Licensed Agents and Clubs/Players
and assisting with the practical arrangements for the relocation of a Player.
29.
In terms of practice, if the Licensed Agent acted for the Player, but the Club paid, the Player
would receive from the Club a P11D tax form saying that the Player had received a benefit
in kind for which he would have to pay the tax. Until 1 September 2007 it was possible to
have a “dual representation” contract where the Licensed Agent acted for both the Player
and the Club although only shown as acting for one. This was prohibited by the 2007
Regulations but then permitted again by the 2009 regulations. Sometimes an agent would in
truth be acting for the Player under a verbal contract but then later make a written
representation agreement with the Club. This was known as “switching”.
30.
Where the Agent acted for the Club, the Club would typically reclaim the VAT it had paid
on the fees due to the Agent. It could not have done so where it was merely discharging the
Player’s liability for fees due to the Agent under a contract between them. Prior to the events
8
in question HMRC had been investigating this and had concluded that even though the
agreement was between the agent and the Club, in truth the Player gained a benefit as well
and so the Club should not be able to reclaim all the VAT. After discussions with the
HMRC on this issue, Bolton reached a settlement in 2011 whereby it paid back to HMRC
50% of the VAT reclaimed in the years 2003/4 to 2009/10 and paid NIC based on 50% of
the agency fees paid over the same period.
SEM
31.
As well as being CEO of SEM, Mr Anderson was also CEO or Managing Director of
Jerome Anderson Management Group Limited (“JAM”) and is himself a Licensed Agent.
Mr Weston has worked for SEM since about 1984 but has also worked for JAM. Mr Horner
has worked for SEM since about 2003. Finally Mr Sheron has been associated with
SEM/JAM since about 2001 having been employed first by JAM. He is not a Licensed
Agent. He and other SEM Defendants say that he did not undertake any agency activities
(which would have required a licence) but instead acted as an assistant to Mr Weston. Mr
McGill denies this and says to all intents and purposes he acted as an agent.
Mr McCann’s dealings with SEM/JAM before 2007
32.
It is common ground that by 1995 while playing for Everton, Mr McCann became a
personal friend of Mr Sheron then (as now) working for SEM. On 27 November 1998 Mr
McCann signed a 4 year contract with Sunderland upon his transfer there from Everton. On
1 November he signed a written representation contract with JAM. This was signed on
behalf of the latter by Mr Weston. By an agreement made on 24 January 2000, Mr
McCann’s contract with Sunderland was extended to 2005. JAM acted for Mr McCann on
that renegotiation for a fee of £210,000 which Sunderland agreed to pay direct to JAM. On 1
March 2001, Mr McCann renewed his representation agreement with JAM. Mr McCann’s
contract with Sunderland was further renegotiated by an agreement made on 17 June 2002
whereby his term was extended to 2006 and his wages increased. As before JAM acted for
him and Sunderland agreed to pay the fee due from Mr McCann (of £263,540) direct to
JAM.
33.
However, on 24 July 2003, Mr McCann joined AV. The Transfer document stated that the
Club used an Agent namely Mr Weston. By a further written agreement of the same date
SEM (through Mr Weston) agreed to act as intermediary between Sunderland and AV in
obtaining the transfer of Mr McCann. The fee was payable by AV in three tranches ending
on 24 July 2005. By a further agreement dated 28 July 2005, Mr McCann’s contract was
extended to 30 June 2008. This stated (as had his original contract) that he had not used the
services of an agent. The agreement between SEM and AV was extended so that AV had to
pay a further fee due in three tranches ending on 28 July 2007.
34.
At one stage Mr McCann was landed with a tax bill on the basis that he had received a
benefit in kind. According to him he was not pleased with JAM over this and he felt that Mr
Weston had let him down. After that, he said, he did not want to use an agent ever again.
35.
In cross-examination Mr Anderson said that he had absolutely nothing to do with Mr
McCann’s transfer to Sunderland or any renegotiation of his contract there. When he was
taken to a fax from Sunderland to Mr Weston which said that Mr Anderson would be picked
up from the airport and which enclosed a copy of Mr McCann’s contract, Mr Anderson said
that this was in fact some form of agent’s “beauty parade” for Sunderland and still nothing
to do with Mr McCann despite the reference to him. Mr Anderson insisted that he was not
9
involved with any new deal for Mr McCann despite an email dated 23 October 2001
enclosing a new offer for Mr McCann from Sunderland addressed to Mr McCann but
referring to discussions with Mr Anderson also about Mr McCann’s need for a salary
progression. In those circumstances Mr Anderson’s denial of any involvement was wholly
implausible.
36.
Mr Weston also gave implausible evidence in relation to his association with Mr McCann on
his transfer to and while at AV. It was put to him that here, SEM was in truth acting as agent
for Mr McCann even if the agency agreement at the time of the transfer was between JAM
and AV. In other words this was an example of switching. Mr Weston denied this even
though (a) according to Mr O’Neill’s witness statement (“WS”) in the McCann action Mr
McCann had told him in late 2006 that Jerome Anderson was his agent (b) according to
Sharon Barnhurst, AV’s Club Secretary in an email of 7 June “his agent is Jeff Weston of
SEM” (c) Mr McCann himself had said when interviewed by the FA on 28 April 2009 that
when he moved to AV he was “with SEM then” and as to who he was with at SEM he said
he got the papers signed by Mr Weston "And Dave Sheron".
The Role of Mr Sheron
37.
An important factual issue in this case is whether Mr Sheron was in truth acting as an agent
(which being unlicensed he was not entitled to do) for Mr McCann in relation to SEM's
involvement with his transfer to Bolton or whether he at most acted as an assistant to Mr
Weston. This involved looking at his role at earlier stages. All the evidence points to his
having acted as an agent. To begin with, when describing the "team" at SEM Mr Anderson
included Mr Sheron as one of them, in the context of the agent's remuneration. And in
answer to the question which licensed agent would deal with which player he said it would
depend on the player's location and in that context referred to Mr Sheron living in the NorthWest. Mr Anderson was also taken to SEM's website as it was on 31 December 2007. It
referred to Mr Sheron as being part of the "SEM senior management team" and that his
primary role was to "broker deals with footballers clubs and players"; The latter clearly
connotes the activities of an agent having regard to the Regulations and Explanatory Note
referred to above. Mr Anderson's denial that this is what the website suggested was wholly
implausible. Moreover, when Mr McGill had spotted this at the time, he called Mr Sheron to
say that the website had "given the game away", Mr McGill having been complaining about
Mr Sheron acting as an unlicensed agent from 7 June onwards. By 4 January 2008, however
those references to Mr Sheron had been removed from the website. Mr McGill confronted
Mr Anderson about this in an email of that date and pointed out that he had downloaded that
part of the website as it was before the changes. That in itself is powerful evidence as to Mr
Sheron's true role. When this was put to Mr Anderson in cross-examination he
unconvincingly said he had no recollection of this and since all his emails were read by his
PA he might not have seen this one. Equally telling was Mr McCann's own evidence about
SEM and its agents as noted in paragraph 36 above which clearly suggested that he saw Mr
Sheron as one of the agents. At that point in the interview, Mr Farnell, then, as now, the
solicitor for SEM interjected "Jeff is the agent isn't he?", Mr Murphy of he FA added "Yes
because Dave Sheron is not like an agent" and then Mr Farnell said "Dave kind of assists
with the admin doesn't he? Yes". All of that, in my view, showed that the impression which
Mr McCann had just given was that Mr Sheron was acting as agent and these remarks were
designed to allay that, for the record.
38.
For his part, Mr Sheron disclaimed any knowledge of the original description of him on
SEM's website and had no idea that it was changed. I do not accept that. And while Mr
10
Sheron (along with Mr Weston and Mr Anderson) effectively said that he was little more
than a glorified PA (the position taken when the FA investigated his role following a
complaint) I regard that as wholly unlikely given the senior role he clearly occupied at SEM
and his particular use where dealings in the North-West were concerned. In rejecting Mr
Sheron's denial of any agency role I also take into account the other dents in his credibility
which I describe below.
39.
While Mr Sheron could not, of course, sign any paperwork, the effect of the findings above
is that if Mr Sheron did become involved with Mr McCann in relation to his proposed
transfer to Bolton it is highly likely that he did so as his agent, and not merely as his friend
or gopher for Mr Weston or others at SEM. I deal with that involvement in detail below.
Mr McGill and Mr McCann - 2006
40.
Mr McGill and Mr McCann had been friends since about 1998. On 31 October 2006 Mr
McGill received a “round robin” email from Mr Worthington at Bolton asking a very large
number of contacts to refer to him any opportunities for Bolton to recruit players. Mr
McCann expressed a concern to Mr McGill at around this time about his future at AV since
his contract ran out in 2008. Mr McCann was aware that Mr Sheron had acted for Mr
McGill in the past and asked whether he would be acting for him again but Mr McCann said
that he had had a major problem with Mr Sheron and SEM because of the large tax bill he
received while at Aston Villa in respect of the agency fee paid to it. According to Mr
McGill, however, he did not say (as became a theme of his evidence) that he would “never
use an agent again”. In December 2006 Mr McGill spoke to Mr McCann in general terms
about his future.
The making of the McGill Agreement - 6 April 2007
41.
Save for points about whether this agreement, if made, was legally binding, its existence or
otherwise is a pure question of fact to be resolved principally by deciding whether it is Mr
McGill or Mr McCann who is telling the truth about it. For the reasons given below I have
no doubt in concluding that it is Mr McGill who is telling the truth and unless otherwise
indicated wherever there is a conflict of evidence between them I prefer Mr McGill's
account.
42.
The first point is that there is a marked increase in text and phone contact between Mr
McGill and Mr McCann in the period leading to 6 April. Mr McGill says this is because
they were discussing Mr McCann's career options with a view, eventually, to Mr McGill
being appointed as his agent. In evidence, Mr McCann was either evasive about this contact,
or said that it was purely social or he was just returning Mr McGill's calls or simply said that
he never wanted to appoint an agent. None of that stacks up. I accept Mr McGill's evidence
that this contact was about Mr McCann appointing an agent because he was concerned about
his future at AV. At first Mr McCann was considering using his financial adviser Paul
Goodfellow. In fact he did not do so and Mr Goodfellow confirmed to Mr McGill
subsequently that he had pitched for that role but had "lost out" to Mr McGill. I accept that
in a discussion with Mr McCann’s solicitor on 29 July 2009 Mr Goodfellow said he knew
nothing about that. But he did not provide any evidence in these proceedings and in fact
what he said was somewhat double-edged since he also said he may have discussed being
Mr McCann’s agent and thought it unlikely that Mr McCann would act for himself. So I
accept what Mr McGill said he was told by Mr Goodfellow, although it is not a major point
anyway.
11
43.
There were long calls between them in mid to late March. On 27 March Mr McGill recalls
that Mr McCann said that he wished to go with him as agent. Crucially he recalled that
probably on the same occasion, Mr McCann told him that his "missus" had told him in bed
the previous night that he should go with Mr McCann because he knew more people that Mr
Goodfellow. Mr McCann admitted that his wife said this to him around that time. The
obvious inference is that he had been talking to her about getting an agent and she thought it
should be Mr McGill which is why Mr McCann ended up telling him what she said. There is
really no answer to this save that Mr McCann then said that his wife had no say in his
football career and that he would never use an agent. I do not accept that. Mr McGill's
evidence is backed up by his text to Mr McCann on 29 March which said simply "Bolton?"
in the light of Mr Worthington's email the previous October and a telephone conversation he
had with Mr Chapman for just under 2 mins earlier that day in which Mr Chapman said that
Mr McCann was a player that he liked. Later that day Mr McCann called Mr McGill. Mr
McCann in evidence claimed not to remember it and again said he did not want an agent. Mr
McCann then asked Mr McGill to speak to "the weirdo" meaning Mr O’Neill, about a new
contract with AV. Mr McCann accepted that he did find Mr O’Neill "weird" at times. Mr
McGill said that he needed to agree terms with Mr McCann first and Mr McCann duly asked
him to come back to England (Mr McGill was in Monaco at the time) to sort it out. AV was
playing Blackburn the following Saturday 7 April and so Mr McGill agreed to come to the
players hotel, the Preston Marriott and speak to Mr McCann on the Friday evening 6 April.
44.
In preparation for the meeting Joshua McGill printed out a standard form contract for his
father to take with him. Mr McCann's details were inserted. Joshua McGill confirmed that
he printed out the contracts although he said that he took handwritten notes of the details and
inserted them whereas Mr McGill said that he inputted the details. I do not think this
inconsistency is of any significance. It is clear that copies of the draft agreement were
printed with Mr McCann's details on them. I thought Joshua gave his evidence clearly and
honestly and though not independent I accept it. If there had been no conversations at all
about Mr McCann appointing Mr McGill, making and printing off the draft agreement
would have been a very odd thing to do.
45.
According to Mr McGill, he met Mr McCann at the hotel and after dinner at about 8 8.30pm they went up to Mr McGill's room to discuss the appointment. I will come to the
details as alleged by Mr McGill shortly but Mr McCann's general point in evidence was that
there was no planned meeting and any encounter with Mr McGill was by chance and brief
and probably downstairs in the bar. On his account he could not explain why they would
have gone to Mr McGill's room if they had. And again he would not have appointed any
agent. One critical point is that paragraph 12 of his Defence in the McCann Action he stated
that there was a meeting that night at which Mr McGill offered a personal cash bribe to Mr
McCann if he appointed him as agent, the cash being in an envelope to which Mr McGill
referred as "chocolates". But in his WS Mr McCann said that the "chocolates" incident was
in fact not then but at a further encounter on 12 May. He said the change of date was
because he was confused since both occasions were at the same hotel. I did not find that
plausible. Mr McCann was also unable to explain a call from Mr McGill to him at 6.27pm
on 6 April, which, according to Mr McGill, was made in connection with their meeting later
on. On Mr McCann's case he would have been driving back from Lytham where he had
apparently been visiting his mother earlier in the day. But the 2 min call was taken by him. I
am quite satisfied that he did have a meeting with Mr McGill in the latter's room on 6 April
to discuss Mr McGill's appointment. The next question is what was agreed. Since Mr
12
McCann's case is a general denial of any agreement, this issue turns essentially on Mr
McGill's account.
46.
After ascertaining what Mr McCann's intentions were about staying at AV with a new
contract or seeking a transfer, they discussed new personal terms. Mr McCann said that he
was earning around £21,000 per week basic or £23,000 with add-ons (in fact it was
somewhat less) and he would want a 3 year deal from then so, with AV another 2 years on
top of his existing contract. Mr McGill agreed to speak to Mr O’Neill the following
morning. He would need the latter's consent if he was to start looking at other clubs for Mr
McCann.
47.
Mr McGill then produced the draft contract from his briefcase but Mr McCann immediately
said that he would not sign a written contract. Mr McGill said that it was a standard 5% fee
with no fee being payable at all if the buying club agreed to pay it for him. Mr McGill had
wanted a two year exclusive agency but agreed to limit it to the close of the present transfer
window (31 August) at Mr McCann's request. Mr McCann agreed that Mr McGill would
have to get permission from AV before other clubs could be approached. This was a
reflection of the "tapping up" rule. Mr McCann again said that he would not sign a written
contract and cited his tax problem. Mr McGill responded by saying that any tax liability
would be covered because Mr McCann's wages would be "grossed up" ie he would secure
for Mr McCann more wages than he was currently getting; in that way, the extra income
would cover not only any tax liability if the buying club paid the fee for him but even the
amount of the fee itself if Mr McGill had to pay it personally. Accordingly, Mr McGill
would seek wages in the order of £26,000 per week, Mr McCann was not otherwise too
bothered about whether he secured a significant wage increase, the main point being to get
him a further two years for his playing career. (Mr McCann himself admitted in evidence
that he would have been happy with the same money.) Mr McCann told Mr McGill that
while he would not sign a written contract he would agree terms verbally and this is what he
did. They shook hands with Mr McGill saying he would get started straight away and with
Mr McCann asking him to speak to Mr O’Neill the following morning (which he did).
48.
Four particular points arose in Mr McGill's cross-examination which require consideration.
49.
First in paragraph 69 of his WS Mr McGill said that he did not offer to indemnify Mr
McCann against any tax liabilities and he repeated this in cross-examination and said
indemnity was "not my word". However in paragraph 26.5 of the Amended Particulars of
Claim, it is pleaded that Mr McGill did offer to indemnify him against any tax liability
(albeit while he was still trying to get Mr McCann to sign a written agreement). In paragraph
57 of his WS for the McCann Action he said that he told Mr McCann that if he signed the
agreement he would "pay his tax" ie indemnify him against any tax liability. But as no
agreement was signed, there was no indemnity anyway. I accept that point. In evidence for
the most part he made clear that in the context of the agreement actually made he had simply
agreed to ensure that any tax liability of Mr McCann's would be covered and that would
happen by "grossing-up" his wages which Mr McGill would have to ensure. I do not think
that much turns on the use of the word "indemnity" in these circumstances.
50.
Second it is right that Mr McGill's WS in the McCann Action makes no mention of the allimportant grossing up. He accepted this in evidence but said, I thought genuinely, that
nonetheless it was true and that otherwise there is no explanation for the wage figure being
agreed at about £26,000 per annum. I have already referred to the fact that Mr McCann was
relaxed about not getting any increase and in addition Mr McCann's evidence was that the
13
first time he became aware of increased wages (to £25,000) was when he arrived to sign for
Bolton on 8 June, which itself is highly implausible. It is true that the narrative at paragraph
26.7 of the Amended Particulars of Claim suggests that Mr McCann requested these wages
but that is not his case and I accept that Mr McGill must have and did suggest this to him
first. It is not significant that this way of protecting Mr McCann against a tax liability did
not involve telling Bolton to gross up the wages itself. The simple obligation for Mr McGill
was to secure a large enough increase to cover the fee and/or the tax thereon. He recognised
that if the club paid the fee anyway the increased amount may end up being a bonus. I see
that but I do not consider it affects the truth of what Mr McGill said. At the end of the day I
accept the force of Mr Budworth’s point which is that given Mr McCann's lack of interest in
higher wages the only sensible explanation for the agreement to seek them is the grossing-up
point (and for the reasons given below I do not accept that the notion of a wage at around
that level only arose later and at the behest of SEM or Bolton).
51.
Third, Mr McGill was also referred to paragraph 54 of his WS in the McCann Action where
he said that he would make a representation contract with the buying club (ie “switching”)
so that the club would be obliged to pay his fee. He was somewhat coy about this in
evidence and I think that had it proved necessary to switch he would have done so. But the
overall point was that he would simply "sort" the fee and tax payment out for Mr McCann so
that he would not be out of pocket.
52.
Finally, I accept that Mr McGill gave slightly confused evidence about when he first heard
of Mr McGill's tax problem and in particular, whether, as his WS suggested, he knew of it
before 6 April. I consider it likely that he had heard about it earlier but that, by itself, would
not have been a reason for Mr McGill not to proffer a written contract.
53.
As a separate point I note the evidence Mr McGill gave about a document containing the
names of many players that Mr McGill produced at the Wyscout conference. The document
was put to him by Ms Walmisley for the SEM Defendants and he said that the document had
been taken from him and he was pleased to get it back as it had taken a long time to prepare.
In fact it seems that it was probably kept on his computer at home and perhaps updated so it
would not have been correct to say he had lost it. So it was something of an exaggeration to
suggest it had gone forever. Mr McGill's focus at this point was that he said he now knew
who had taken it (this matter was not gone into). I do not consider that this exaggeration
made a dent of any significance in his evidence overall.
54.
Indeed, whether one views the above points individually or together I do not consider that
they render Mr McGill's evidence unreliable generally or affect the key points of his
evidence.
55.
On any view Mr McGill thought he had made an agreement. For example when he emerged
from his room that night he told the player Chris Sutton, a friend of his, that the meeting
which he had told him about earlier had gone well and he was now Mr McCann's agent. Mr
Sutton made a WS in the McCann Action stating this and although it was merely tendered as
a hearsay statement in this action, I see no reason not to accord it some weight. While Mr
McCann did not agree it was accurate he accepted that Mr Sutton was his own man (ie not
easily pushed into something by others) and he did not suggest a reason why Mr Sutton
might have made this up. Equally, at 23.07pm Mr McGill texted Mr O’Neill to ask for a
meeting in the morning. Of course, Mr McGill could in theory have been touting himself as
an agent for Mr McCann when in truth he knew he was not, but I do not consider this likely
especially as he prepared a draft written agreement and fixed up a specific meeting.
14
56.
57.
Accordingly I accept that Mr McGill and Mr McCann agreed that
(1)
Mr McGill would act as Mr McCann's exclusive agent to get him a new contract at
AV or with another club for the period until 31 August 2007;
(2)
He would procure at least two more years after his present contract ran out with
wages at around £26,000 to ensure that he would be covered for payment of any fee
and/or tax thereon;
(3)
If the club would not pay Mr McCann would pay a 5% fee and if it did, Mr McGill
would be entitled to charge a 10% fee.
Whether there was any legal impediment to this being a binding contract I discuss below.
Further Events in April 2007
58.
Mr McGill spoke to Mr O’Neill the following morning and told him he was acting for Mr
McCann. Mr O’Neill said that he would give Mr McCann's future much consideration. Mr
O’Neill confirmed this conversation in evidence. It is clear that Mr O’Neill did not have an
especially high opinion of Mr McGill and was certainly not his friend. He thought he was like other agents - a bit of a busybody. All of which reinforces the fact that he came to Court
not to support Mr McGill but to tell the truth. Generally he was an impressive and thoughtful
witness. I also accept his evidence that in October/November 2006 Mr McCann told him
that he was considering moving away from Jerome Anderson as his agent and wanted Mr
O’Neill's view of Mr McGill as an agent. I further accept that Mr McGill then spoke to Mr
McCann about his conversation with Mr O’Neill on 7 April once Mr McCann found that he
would not start the game against Blackburn. Mr McCann was unable to give any convincing
explanation as to why he spoke to Mr McGill that day. For example in relation to a call in
the morning (after Mr McGill had seen Mr O’Neill) Mr McCann said first that he would just
be seeing if Mr McGill wanted a coffee and then said in fact it was to go for a walk.
59.
I accept that later in April Mr McGill called a number of clubs on behalf of Mr McCann to
see if there was any interest. He kept Mr McCann in the picture which is evidenced by the
significant mobile phone contact between them especially the long calls towards the end of
April.
Mr McGill's activities in May 2007
60.
On 5 May 2007 Mr McCann was not selected to start the home match against Sheffield
United and told Mr McCann to fly back to England from Monaco and speak to Mr O’Neill
to release him. This evidence is supported by a text from Mr McCann to Mr McGill on 6
May saying "Gilly. Next time you see the weirdo ask him to let me go." In evidence Mr
McCann tried to explain this by saying that all he meant was that since Mr McGill had Mr
O’Neill's ear, if Mr O’Neill mentioned his name he should tell Mr McCann. That is
implausible. So was Mr McCann's denial that he was giving an instruction to Mr McGill in
that text. On 7 May Mr McGill did speak to Mr O’Neill to say Mr McCann wanted to leave
and Mr O’Neill said that he should "get on with it." Again, this is supported by Mr O’Neill. I
accept that thereafter Mr McGill spoke to a number of clubs on Mr McCann's behalf and
that Mr McCann was kept in the picture. In relation to Bolton Mr McGill says that he called
Mr Chapman; who told him to speak to Mr Worthington; this he clearly did as is evidenced
by calls on 8 May. Mr Worthington also confirmed contact with Mr McGill.
15
61.
On Friday 12 May the AV team was again staying at the Preston Marriott hotel because they
were playing Bolton the following day. Mr McGill met with Mr O’Neill (and again this is
supported by Mr O’Neill) who gave him a transfer price of £1m which was duly reported
back to Mr McCann. He accepted that he would have had to have consulted Mr Lerner as to
a transfer fee for Mr McCann and would have done so here before giving the fee to Mr
McGill.
62.
Here it is necessary to consider the evidence of Mr Fitzgerald the former CEO of Bolton. In
paragraph 6 his WS he says that after the end of the season Mr O’Neill approached him to
say he was interested in disposing of Mr McCann and had heard Bolton were interested. Mr
Fitzgerald said that after consulting with Mr Lerner the owner of the club they fixed on a fee
of £1m. That paragraph was not expressly put to Mr O’Neill but in any event he said in
evidence that Mr Fitzgerald had contacted him, some time after he had advised Mr McGill
of the fee, to ask what the fee would be. Mr O’Neill told Mr Fitzgerald £1m. Mr O’Neill did
not agree that Mr Fitzgerald at that time would be involved in every deal and would need to
agree a transfer fee before it could be made known (for example to an agent). I do not think
that Mr Fitzgerald was as involved with transfers as he now suggests nor do I accept that it
was simply not open to Mr O’Neill to put forward a figure at least after having discussed it
with Mr Lerner. Moreover I found Mr Fitzgerald's evidence somewhat confused at points.
Where their accounts differed I preferred Mr O’Neill's.
63.
As for Mr McCann, he says that on 12 May he was in Mr McGill's room that night when he
tried to bribe him with "chocolates" but he was shocked by this and said that he did not want
an agent. I am quite sure that this incident (originally said to have been on 6 April) never
happened.
64.
However what did happen was that Mr McGill spoke to Mr Chapman so that he and Mr
Worthington could have a quick word with Mr McCann the next day, 13 May. They did
meet as confirmed by Mr Worthington. The latter recalls Mr McGill saying that he was Mr
McCann's agent while Mr McCann was there. Mr Worthington is also sure that he told Mr
Lee about the availability of Mr McCann either verbally or in a handwritten list of various
players. The second WS of Brian Prestridge of Bolton adduced as a hearsay statement says
that in a search for relevant documents no handwritten lists made by Mr Worthington about
Mr McCann were found. That may be but it is possible that such a list no longer exists. I
thought that Mr Worthington gave his evidence clearly and honestly and see no reason to
doubt it. And if he went to the trouble of seeing Mr McCann after earlier contact about him
with Mr McGill, it is logical that he would want to report on him in some way. I do not
accept that Mr Lee is right when he says he had not been told about Mr McCann by Mr
Worthington. I do not accept Mr McCann's evidence that he did not see Mr Chapman on that
occasion as well as Mr Worthington.
65.
On 14 May, as the telephone records show, Mr McGill spoke to Mr Chapman at Bolton for
over 6 mins. Texts to other clubs show that Mr McGill was telling them that the transfer fee
for Mr McCann was £1m and his wages (requirement) was £26,000 per week. I accept Mr
McGill's evidence that this was communicated to Bolton also.
66.
It is common ground that on 19 May Mr McGill attended a stag party given by a Mr.
Thirwell a friend of Mr McCann, in a bar on the Quayside in Newcastle. I accept his
evidence that the invitation came from Mr McCann. Mr McGill clearly did not just wander
in as Mr McCann seemed to suggest. Mr McGill says that he was introduced by Mr McCann
as his agent and that was the perception of those who talked to him. This is backed up by Mr
16
Lumsdon who says that Mr McCann told a friend, a Mr Hills, that Mr McGill was his agent.
He also confirmed that Mr McGill had been asked there by Mr McCann. While some
elements of Mr Lumsdon's WS were not present in his earlier one in the McCann Action, he
struck me as a patently honest witness, even if not independent because a friend of Mr
McGill. Pausing there, I find that by late May 2007, Mr McGill was acting as Mr McCann's
agent, Mr McCann was treating and instructing him as his agent and in that role Mr McGill
had communicated to Bolton along with some other clubs the transfer fee required by AV
and Mr McCann's desired wages.
67.
I add here that Mr Spragia gave some evidence in support of Mr McGill's case. He said that
he recalled that Mr McCann had been put forward to Bolton by Mr McGill via Messrs
Worthington and Chapman and the word at Bolton was that Mr McGill was Mr McCann's
agent. Towards the end of the season he thought that Bolton was keen to sign him. He also
said that at some point he told Mr Lee that Bolton was dealing with the “wrong agent”.
Despite there being some confusion in Mr Spragia's evidence over his later departure from
Bolton I thought that his evidence on the key points in his WS was credible, as far as it went.
The Wigan Meeting
68.
It is the case of both Bolton and SEM that there had been discussions between them about
Mr McCann before Mr McGill had a meeting at Wigan. However I deal first with what
happened on this occasion. Mr McGill and his son went to Wigan on 21, 22 or 23 May to
discuss Mr McCann with John Benson the general manager and Chris Hutchings the acting
team manager following the departure of Paul Jewell. Mr McGill told them that the
proposed deal was a transfer fee of £1m with wages of £26,000 for three years. Almost
immediately after the meeting Mr McCann rang him while he was in the car park, saying
that he knew he had just been at Wigan. When asked how he knew he said that Mr Sheron
had called him. Mr McGill's view, then as now, was that Mr Sheron found out because he
was a close friend of Mr Hutchings, who, along with Paul Jewell was a client of SEM.
Joshua McGill supports this saying that he heard his father speaking to Mr McCann in the
terms above though saying that the connection was Paul Jewell when asking himself "how
does he know"? According to Mr McGill, Mr McCann, on being asked by Mr Sheron why
Mr McGill was at Wigan, told Mr Sheron that Mr McGill was his agent.
69.
As to this incident, Mr McCann said he simply could not remember it. While Mr Sheron
denies having placed any calls to Mr McCann, having initially been tipped off by Mr
Hutchings or Mr Jewell about the meeting at Wigan, he did accept that on 23 May, Mr
McCann called him, as the records show. As to the purpose of those calls he said they were
about Mr McCann asking if he could find out if Mr McGill had been in Wigan because he
knew of Mr Sheron's relationship with Mr Jewell. Quite apart from the fact that Mr McCann
did not say this in his evidence, it is a very odd explanation. If Mr McCann was genuinely
curious why Mr McGill was in Wigan (assuming he did not know) then there is no reason
why he could not have called Mr McGill. I think the version of the calls put forward by Mr
McGill is much more plausible.
70.
There is a difficulty over dates however. 23 May has mid-morning calls from Mr McCann to
Mr McGill and to Mr Sheron. Yet Mr McGill seems to have been in his office in Sunderland
making calls that morning and if the call from Mr McCann came just after the meeting in
Wigan Mr McGill could not possibly have got down there in time. On 22 May there are no
calls from Mr McGill to Mr Sheron and two calls between Mr McGill and Mr McCann. 21
May has no calls from Mr McGill to Mr Sheron. On the other hand, it is not suggested there
17
was no meeting at Wigan on one of those days and Mr Sheron agrees there was contact
between Mr McCann and him about Mr McGill's visit, at around that time. Moreover the
events as recounted by Mr McGill and his son are unusual and it is hard to see how they
would have invented such an incident. Indeed Mr McGill recounts essentially this incident
in his long email of complaint dated 20 June 2007 sent to Mr Lampitt of the FA. While there
may have been some confusion over the timing and the location where the calls were
received I do find that they happened essentially as Mr McGill recounted. What is striking is
how there was no apparent contact between Mr McCann and Mr Sheron before about 23
May yet considerable contact afterwards. The obvious inference (which I draw) is that Mr
Sheron got wind of Mr McCann's planned move and Mr McGill's role in it and decided to
try and get involved as agent himself. There were text messages between Mr McCann and
Mr Sheron on 23, 25 and 27 May.
71.
On 28 May 2007 Mr McGill spoke to Mr McCann who said that Mr Sheron had told him
that he was to have a meeting with Mr Lee about Mr McCann. Mr McGill, immediately
called Messrs Spragia, Worthington and Chapman at Bolton none of whom knew anything
about a meeting. Mr McCann's evidence about any conversation with Mr McGill that day
was odd to say the least. He said that on that day Mr Sheron might have rung him to say
there was "interest" but knew nothing of any meeting. Asked why in that case he should tell
Mr McGill about it since (according to Mr McCann) it was nothing to do with him, he said
he was being "polite" to Mr McGill. I reject that explanation.
72.
Later that day Mr McGill texted Mr Lee to say he had spoken to Messrs Worthington and
Chapman about Mr McCann some weeks before and now Mr McCann said Mr Sheron told
him there was a meeting with Mr Lee. Later Mr Lee texted Mr McGill to ask him not to use
him as a "pawn" and he should ring in an hour but later told him to call Mr McParland. If it
was clear by then that Bolton was dealing with SEM in relation to Mr McCann (as the
Defendants allege) it is very hard to see why Mr Lee should have entertained Mr McGill's
texts at all as opposed to saying he should not be used as a pawn. I did not find Mr Lee's
explanation, that he felt it was necessary to get Mr McParland involved, to be convincing. I
think the better explanation is that Mr Lee had already heard about Mr McCann and the
possible transfer and the proposed terms on the basis of Mr McGill's involvement but when
he heard that Mr Sheron was now entering the fray he did not want to be caught between
them. That makes particular sense if, in fact, there is no good reason to suppose that the two
Neighbourhood meetings took place as alleged at least insofar as Mr McCann was the
subject of discussion at them (see below).
73.
Mr McGill then spoke again with Mr McCann who told him that he was to go to the meeting
at Bolton along with Mr Sheron and Mr McGill told him not to go. It does not appear that he
did go.
74.
Mr McGill then says that he spoke to Mr McParland and they spoke for over 4 mins. Mr
McParland asked him "what’s the deal" and Mr McGill told him that he was representing Mr
McCann and had been speaking to Bolton and Mr McParland confirmed there was serious
interest in him. He asked what the transfer fee was and Mr McGill told him and said that Mr
McCann wanted around £26,000 per week and a three year deal. Mr McGill says that Mr
McParland replied "if the figures don't deviate too much from these, we will do the deal." He
asked Mr McGill to text his number which, as the records show, he did, with Mr McParland
thanking him.
18
75.
Mr McParland admits there was a conversation with Mr McGill that day. He also accepted
that Mr McGill probably told him that he was Mr McCann's exclusive agent. Beyond that he
could not really remember what was said for example about the transfer fee of £1m or the
wages and term. His evidence was somewhat confused. He accepted that if he clearly knew
that SEM were going to act for Bolton in connection with Mr McCann's transfer and Mr
McCann was not using an agent he would have told this to Mr McGill, but he later said that
he might have listened to what Mr McGill said anyway because he had been put in the
picture just before by Mr Lee about Mr McGill and had it in mind that maybe there was
someone else in it so he should hear Mr McGill out. If so, then it would be logical for him to
ask what the deal was, though Mr McParland denied that he did. Mr McParland also said
that following the call from Mr McGill he called up Mr Horner to see if Mr McCann was
using Mr McGill and Mr Horner said not. Mr Horner gave evidence to the same effect. In
fact, according to Mr McParland he had already been told by SEM at the second
Neighbourhood meeting that Mr McCann was not using an agent. If so it is very hard to see
why he gave Mr McGill the time of day at all on 28 May or took his telephone number or
felt the need to check (again) with Mr Horner. In relation to the alleged Neighbourhood
meetings I found the evidence of both Mr McParland and Mr Horner to be unreliable (see
below). Equally I reject the suggestion that Mr McParland in fact checked with Mr Horner
again on 28 May.
76.
However, Mr McGill's own account of this call was criticised by the Defendants. First it was
said that there was no evidential basis for Mr McParland asking what the deal was on 28
May. Dealing with the contacts with Bolton prior to that date, I did not see any force in the
fact that Mr McGill's WS did not refer to a call to Mr Chapman on 29 March when the
telephone record clearly shows a call, prior to him texting "Bolton?" to Mr McCann. Nor did
I find a lack of detail in what was meant to be an informal meeting between Mr McCann and
Mr Worthington on 13 May after the Bolton-AV match of any significance. Nor was the fact
that he had hoped that Ally McCoist from Glasgow Rangers would share his box at the same
match. While Mr McGill sent a number of texts to managers or other senior figures at other
clubs in the week following, Mr McGill did call Mr Chapman on 14 May and it is not
credible to suggest that it was not some sort of follow-up to the informal meeting the
previous day at Bolton even if Mr Chapman was also his friend or that he did not mention
wages and contract length as he had to others, be they managers or otherwise.
77.
I take the point that it is not clear that the calls made by Mr McGill to other clubs after 28
May must have been to say that Mr McCann was going to Bolton but that does not dislodge
the fact as I find it that Mr McParland did express a general willingness by Bolton to take
Mr McCann on the kind of basis Mr McGill suggested.
78.
Mr McGill was also taken to task for what he said in a long email of complaint to the FA
sent in the evening of 20 June 2007 so very close to the events he describes. It is correct that
the sequence of matters described therein is not the same as in his present WS or evidence
but then the email was clearly not purporting to be a WS and was done without the benefit
of telephone records. But what is important is that this email does still contain the gist of the
present complaint and the events relied upon. So there is reference to Mr McGill being
chosen over Mr Goodfellow, the Wigan meeting, contact with the Bolton coaching staff, the
conversation with Mr McParland who asked about Mr McCann's proposed wages and the
transfer fee and Mr McCann's saying that there was to be a meeting at Bolton with Mr
Sheron. Of course it can be said that this email is self-serving but I see it as supportive of Mr
McGill's overall case on the facts - it is hard to see why he would make up an incident at
19
Wigan or a conversation with Mr McParland only a month or so after they were said to have
taken place.
79.
Mr McGill called Mr McCann following his call with Mr McParland and told him that
Bolton would do the deal.
80.
Whether Bolton was actually the "front runner" in terms of clubs for Mr McCann by 28 May
does not seem to me to matter much, as opposed to the fact that Bolton (through Mr
McParland) agreed that it was willing to buy Mr McCann on the terms suggested.
The Involvement of SEM and Bolton prior to 28 May 2007
81.
I have found above that Mr McGill informed Bolton (via Mr Chapman by 14 May and Mr
McParland on 28 May 2014) that he was the agent and what the deal was, and that Bolton
was interested with Mr McParland confirming terms along those lines would be acceptable.
I need now to consider the evidence of SEM and Bolton about their alleged first
involvement in relation to Mr McCann's transfer.
82.
Their case rests on two alleged meetings at the Neighbourhood Restaurant in Liverpool, the
first in around mid-May 2007 and the second, a week or two later. The first was apparently
attended by Mr Horner for SEM and Mr Lee and Mr McParland for Bolton. According to
Mr Horner's WS it was a general meeting to see if SEM could assist Bolton regarding their
player requirements for the forthcoming season. Then, either Mr Lee or Mr McParland first
mentioned Mr McCann and as Mr Horner knew that Mr McCann was known to SEM he
would get some information about him for Bolton. This conflicts with paragraph 9 of
Bolton's Defence which alleged that it was Mr Horner who volunteered Mr McCann's name
which Mr Horner denied. Indeed, Mr McParland in his WS says that either he or Mr Lee
volunteered Mr McCann's name.
83.
Mr McParland said in his WS that after the first Neighbourhood meeting, Mr Horner came
back to him and said in one or more conversations that his enquiries revealed that AV would
be willing to sell Mr McCann who would be interested in moving to Bolton, wages of £2025,000 per week having been mentioned by Mr McParland at the first meeting. But in
answer to questions from Mr Berragan, Mr Horner said that his role was really over after the
first meeting because he reported back to Mr Sheron and Mr Weston who then dealt with the
matter; he was not aware of what they did thereafter and indeed did not believe that they did
then make enquiries. It is true that he then accepted in answer to some further suggestions
from Mr Berragan that he might have spoken to Mr Sheron and Mr Weston in the interval
and reported back to Mr McParland but he then said that he could not say if the ability and
willingness of Mr McCann to move was known by the time of the second meeting - nor was
he even sure that this was stated at the meeting. Mr McParland agreed that this was not what
he said had happened. If Mr McParland is right then it is not what Mr Horner recalls what
happened. If Mr Horner is right then there was no clear green light for Mr McCann at the
second meeting.
84.
Mr Horner's evidence was also implausible on the question of a transfer fee. In paragraph 13
of his WS he said that "we" knew from SEM's initial enquiries that Mr McCann would be
available for £1m but he could not actually say how he knew that this was so save that it was
Mr Sheron and Mr Weston's "valuation" of what the transfer fee would be which is entirely
different. He agreed he was not saying that SEM checked with AV, it was just to say there
20
was a "market value" and he certainly denied Mr McParland's suggestion that he volunteered
that AV would sell McCann.
85.
Further, Mr Hughes gave evidence in that early 2013, he spoke to Mr Horner, a friend, at Mr
McGill's request, about any involvement in the transfer of Mr McCann and he said that he
was far from happy at suggestions that he had been. Mr Hughes so informed Mr McGill in
an email, stating that Mr Horner said that he may have been implicated in having had an
involvement in Mr McCann's transfer but that he had no personal involvement in it at any
stage. In a later conversation with Mr Horner, Mr Hughes said that Mr Horner was more
hesitant to deny any involvement. Although he said that he had asked Mr Horner about this
in the context of this litigation I reject any suggestion that what Mr Horner was really saying
to Mr Hughes was that he was not involved in any litigation about Mr McCann but that he
had said he was involved in initial talks. He did not provide a WS in the McCann Action
although if his WS in this action was correct he had a pivotal role in an important first
meeting with Bolton and at least put enquiries in chain thereafter. He was aware of the
McCann Action but did not know if Mr Sheron and Mr Weston had produced WS then but
there was no talk in the office about this. I regard that as absurd; of course SEM must have
been discussing the matter internally even if the original claim was against Mr McCann only
and he would obviously have been approached if those whom he had contacted about Mr
McCann after the first meeting were Mr Sheron and Mr Weston.
86.
Both Mr Lee and Mr McParland say that after the second meeting they effectively dropped
out passing the deal to Mr Gartside and perhaps Mr Marland. But Mr Marland appears not to
have become aware of the deal until much later, in June (see below) and Mr Gartside's
understanding of the fact that AV would be willing to sell Mr McCann came (according to
him) not from Mr Lee or Mr McParland but from a conversation with Mr Fitzgerald in early
June.
87.
Mr Sheron of course says he attended the second meeting. But his evidence is implausible,
too. First he says that his very first involvement with a transfer by Mr McCann came after
the first meeting when he was contacted by Mr Horner who asked him to enquire with Mr
Weston whether Mr McCann would be available to move and so he did. It is very hard to see
why, if Mr Weston was the real source of the information sought, Mr Horner did not simply
call Mr Weston himself. He then said that after the second meeting Mr Weston asked Mr
Sheron to speak to Mr McCann to tell him of Bolton's interest which he did. He said that Mr
Weston had been appointed as Bolton's agent and Mr McCann said he would move if the
terms were right. But that does not work because according at least to Mr McParland and Mr
Lee, they had the relevant terms and Mr McCann's availability and willingness by the time
of the second meeting. Nor did I follow why Mr Weston could have not himself called Mr
McCann.
88.
Mr Weston's evidence about SEM's initial involvement with Mr McCann is also
unsatisfactory. First, in his FA interview on 31 July 2008 he said that SEM thought that Mr
McCann might be available not because of any direct enquiry but because since they were
last involved with him they had kept him on their radar (though in evidence Mr Weston said
that did not mean his own radar) and had noticed he was not being picked. That seems a slim
basis for such a belief. Then he said that Bolton said that it was looking for a "player similar
to a Gavin McCann type of player" and so they suggested Mr McCann. That of course is
contrary to Mr Horner's evidence and that of Mr Lee and Mr McParland. Then paragraph 16
of his WS says that he personally contacted Mr McCann to tell him what terms Bolton was
prepared to offer. But to the FA he said that he had not spoken to Mr McCann for many
21
years and so did not speak to him about "this transfer"; he had no idea how Mr McCann
became aware of Bolton's interest but perhaps from AV. In evidence, Mr Weston suggested
that the transcript was wrong because what he actually told the FA was that he had not
spoken to Mr McCann about the transfer as opposed to his personal terms and that when he
said he had not spoken to Mr McCann for "many years" he meant many years before the
occasion when he did speak to him about the personal terms. Although Mr Weston must
have been given a copy of the transcript at the time it appears he never challenged it. In any
event I consider his explanation here to be wholly implausible. I do not accept that he spoke
to Mr McCann at all about this deal.
89.
It should also be recalled that originally SEM was asserting that these meetings occurred
much later in "very late May or early June". See the letter from Mr Anderson of 31 July
2009.
90.
I have also considered Mr Lee's evidence which refers to these meetings and broadly
supports Mr McParland's. But originally his solicitors wrote on 6 August 2009 that he could
not be of any assistance to the Court in relation to Mr McCann's claim, which plainly was
not true.
91.
I add the further point, though it is not critical, that while most of the witnesses here
provided WS’s in the McCann Action including Mr Anderson, Mr Weston and Mr Sheron,
there was no statement from Mr Horner then, which I consider to be an odd omission. It is
not answered by saying that the claim against Mr McCann was for breach of contract not
inducement because the factual context and in particular how his transfer was affected at the
end of the day, was clearly relevant.
92.
Having considered all of the above including Mr Lee's evidence, I simply do not accept that
there were the two meetings prior to 28 May as alleged at which Mr McCann and any
availability, transfer fee and terms were discussed. There may have been meetings at the
Neighbourhood then or later to discuss other players including (as was admitted) Heidar
Helguson and Danny Guthrie, but not about Mr McCann. That would also explain why Mr
McParland spoke to Mr McGill on 28 May in the way that I have found he did. I agree with
Mr Budworth that, accepting of course that Mr McGill bears the burden of proof, the
Defendants have been unable to fill the "void" that is left about how they came to be
involved, if Mr McGill's account supported by the inferences he wishes the Court to draw, is
to be rejected. Their accounts do not stack up and are riddled with inconsistencies and
different versions over time. The only sensible conclusion is that SEM, through Mr Sheron,
got wind of the fact that Mr McCann was on the move, being represented by Mr McGill, and
decided to try and poach him based in particular on the relationship which Mr Sheron had
had with him. The "spikes" in the mobile contact between them (which records were not
available to Mr McGill when he pieced together what had happened) support this. Mr
Sheron would have been told the transfer fee and the personal terms sought by Mr McCann
from (at least) Mr McCann because he knew them. He may also have heard them again from
Mr McParland on or after 28 May. At some point thereafter between 28 May and 7 June
SEM (through Mr Sheron and then Mr Weston) spoke to Bolton to confirm the essential deal
and also that the mechanics of SEM's involvement would be an agency agreement with
Bolton. That intended appointment must have been approved (at least) by Mr Gartside since
it could not have been Mr Marland and we know that it was Mr Gartside who asked for the
contracts to be prepared on 7 June.
22
Further Contact between Mr McGill and Mr McCann
93.
Mr McGill spoke with Mr McCann further on 30 May and 3 June. At 5.28pm on 7 June Mr
McCann called Mr McGill to say that Mr McParland had told him to use Mr Sheron and that
Mr Sheron would use a lawyer given that he was unlicensed. Mr McGill said that he was not
prepared to do a deal with Mr Sheron since he had done all the work and the deal was all but
done. Later, at 6.51pm Mr McCann called again to say that Mr Sheron was doing the deal
and in answer to Mr McGill's plea "Don't do this Gavin we have an agreement, what about
that?" he said "I am sorry I feel shit". That Mr McCann was working with Mr Sheron at this
time is evidenced by the numerous calls and texts between them.
94.
Mr McCann was asked to say why he would call Mr McGill the evening before going to
Bolton to sign and he was unable to. At one point he referred to the fact that he was in a
service station with two motor scooters in his van and just told Mr McGill he had a medical
the following day. In fact at the time he would not have been able to use them as a playing
footballer and then said they were his father's. When asked why call Mr McGill at all he said
the deal with Bolton had nothing to do with him but the man was a pest and a chancer. I
have no doubt that Mr McGill evidence about the calls made with Mr McCann on 7 June is
correct. On Saturday 9 June, both Mr McCann and Mr Lumsdon were at Paul Thirlwell's
wedding. According to Mr Lumsdon Mr McCann asked if he had spoken to Mr McGill and
when Mr Lumsdon said he thought Mr McGill was doing his deal he said "I feel shit..I'd
better ring him". Mr McCann denied this and said Mr Lumsdon was "easily led". I have no
doubt that Mr Lumsdon was speaking the truth.
Mr McGill's complaints
95.
In the evening of 7 June Mr McGill sent two texts to Mr McCann saying that he would be
using an unregistered agent and that Mr Sheron still worked for Mr Anderson. He tried later
that evening and subsequently to call Mr McCann but he did not respond. Mr McCann
called Mr Sheron at 5.33pm and 7.30pm on 7 June and at 7.43am on 8 June, the following
day. It is inconceivable that Mr McCann did not report back to Mr Sheron on his
conversations with Mr McGill. Mr McGill sent a further text to Mr McCann at 2pm on 8
June.
96.
There is evidence from the telephone records of a brief call to Mr Gartside from Mr McGill
lasting 42 secs at 9.49pm. Mr McGill did not deal with this call specifically in his evidence
but he does refer to it in his substantive email complaint to the FA of 20 June 2007. There he
says that he called Mr Gartside before the deal was done to say that there was something
wrong but Mr Gartside just shouted at him and told him to go away. The call was put to Mr
Gartside, the suggestion being that if it was made, and whether he answered it or just heard a
voicemail he knew from that point on that Mr McGill was acting as Mr McCann's agent and
his suggestion that he had never heard of Mr McGill prior to texts sent later to him by Mr
McGill, was wrong. Mr Gartside said that he could not say whether he answered the call but
otherwise denied he thereby became aware of Mr McGill and his role.
97.
At 7.28am on 8 June, Mr McGill complained to the FA that Bolton had instructed an
unlicensed agent, Mr Sheron, Mr McGill having been on "this deal" for 3 months. (I add that
I do not see this language is inconsistent with a binding agreement, nor his later reference in
the email of 20 June to a "verbal mandate"). At 7.41am Mr McGill texted Mr Worthington
to say that he would not be sending him any more players since Mr McParland gives them to
unlicensed agents. Mr Worthington responded on 19 June to say he would speak to Mr Lee
and Mr McParland. Then, at 10.50pm on 8 June Mr McGill texted Mr McParland to say that
23
he was a cheat and on 9 June at 10.09am he texted Mr Marland to say that he was reporting
Mr Sheron and Mr McParland to the FA. He said much the same in a text to Mr Gartside at
12.27 the same day. He also texted Mr Lee at 2.09pm. On 10 June at 11.55am Mr McGill
texted Mr Marland again and at 12.15pm Mr Marland suggested he came in for a chat.
Interestingly, Mr McGill texted Messrs Worthington, Chapman and Spragia on 11 June to
say that they had behaved properly which is some support for the fact that he dealt with
them in connection with Mr McCann but was not blaming them for what happened. Further
texts saying that he was going to Court or the newspapers were sent to Mr McParland and
Mr Gartside on 11 and 12 June.
98.
At some point following 8 June Richard Corser of the FA asked Mr McGill to put his
complaint in writing. This was repeated by David Lampitt of the FA on 19 June and it came
in the form of Mr McGill's long email of 20 June.
The Actual Involvement of SEM
99.
In truth the deal between SEM and Bolton was put together very quickly at the last minute.
Although the SEM Agreement is dated 1 June it is (now) common ground that it was only
made on 7 June.
100.
Mr McCann's evidence was that he only got a call from Mr Sheron to say that Bolton was
interested on the basis of £25,000 and a 3 year deal on 7 June. Although Mr Sheron said that
Mr Weston wanted to talk to Mr McCann, Mr Weston did not do so, prior to the signing.
And Mr McCann said that he did not know that he was actually going to sign a deal until he
saw the paperwork at Bolton the following day.
101.
Mr Sheron said at first that (contrary to what Mr McCann said) he did not speak to him on 7
June but much earlier, about Bolton's interest in him and the deal. He then said that he would
have spoken to Mr McCann on 7 June as well, because there was a "hierarchy" of persons to
contact but the deal only emerged clearly on 7 June. I consider that Mr Sheron was tailoring
his evidence to fit the fact that Mr McCann was saying that it all happened on 7 June. Mr
Sheron also insisted that Mr Weston had spoken to Mr McCann about the deal; he said he
knew this because he had asked Mr Weston to do so. I have already found that Mr Weston
did not do so. Indeed when Mr Sheron was asked how Mr Weston could have known the
terms of the deal set out in his first email of 7 June (see below) he said that he had no idea. I
consider that the reason why Mr Sheron (and now Mr Weston) wish to suggest that Mr
Weston did speak to the player direct is to head off any suggestion that Mr Sheron was
acting as an agent when he had no licence so to do. In my judgment it is plain that this is
what he was doing.
102.
Mr Anderson was asked what he understood Mr Sheron to have been doing when he went
with Mr McCann to Bolton on 8 June for his medical and to sign the paperwork.
Surprisingly, given the issues raised at the time by Mr McGill and in this litigation about the
true role of Mr Sheron, Mr Anderson said that he had never asked Mr Sheron, and there was
no reason to ask him because he would have been doing his normal duties, according to Mr
Weston and there was not need to investigate further. That is completely counter to how any
responsible CEO would deal with the matter and I do not accept his evidence here. I am
quite sure he has spoken to Mr Sheron about his entire involvement in these events.
103.
As for Mr Weston, there is an important exchange of emails on 7 June. At 3.18pm he
emailed Mr Marland "further to our conversation this morning" to confirm the details of
24
SEM working for Bolton "to assist in the transfer of " Mr McCann from AV. He then said
that the "terms of the deal as we understand it" were a transfer fee of £1m, £25,000 per week
for 3 years, an appearance fee of £3,000 per game and a further £5,000 per week if Bolton
qualified for the Champion's League. SEM's fee was to be £300,000 plus VAT payable in
three equal instalments on 1 July 2007, 2008 and 2009. At 5.19pm he emailed again saying
that the agreed terms were as before save that the appearance fee was reduced to £1,500 if
appearing only as a substitute and in the FA Cup or League Cup any appearance fee was
payable only from the 5th round. Also, instead of an increment of £5,000 per week if Bolton
qualified for the Champion's League it would be a flat payment of £75,000 and only if Mr
McCann had started 50% of the previous season's games. These terms were thus less
favourable than those mooted by Mr Weston in his first email and can have come out only as
a result of some negotiations in the course of that day. The agents fees were also to be paid
on 1 August and not 1 July. Mr Weston says that he did not advise Mr Marland of the
personal terms or the transfer fee.
104.
It is obvious from any fair reading of those emails that the first is not reciting an offer
already made by Bolton. That is because the second email shows that Bolton was not
prepared to accept it since the terms were different. Nor is it likely that Bolton would simply
go in and offer £25,000 which was at the top of the range. Instead Mr Weston was putting to
Mr Marland the deal which he thought had already been agreed - but not through any
negotiation on his part (otherwise he would not have said "as we understand it") but because
that is what he had been told by someone else; the candidate for that must have been Mr
Sheron. He cannot have told Mr Weston that those terms were what Mr McCann was merely
seeking, nor could Mr McCann himself, because they are put forward as the deal. But Mr
McCann would have been able to tell Mr Sheron that Bolton was prepared to do a deal on
the key terms because Mr McGill had told him following (at the latest) his conversation with
Mr McParland on 28 May. I reject the idea that Mr McCann had no idea of Bolton's
involvement or the deal to be done until 7 June. The only variable would therefore be
appearance fees and Champions League bonuses so they were probably put in, based on
usual terms, and thus the only change was to those matters.
105.
As far as Mr Marland was concerned, he says he had been told by Mr Gartside around that
time that a deal had been done, and he had no power to negotiate the transfer fee, agents fee
or salary. Nor had he been dealing with Mr Weston previously. He had however been made
aware somehow that the transfer would be proceeding. When Ms Gregson emailed him at
11.47am on 7 June to say that Mr Gartside had asked that a contract be prepared Mr
Marland knew that it would be for Mr McCann but was unaware of the terms and so he
replied to Ms Gregson at 11.54am saying that he was awaiting the full details from the
agent. His email at 1pm shows that by then he had discovered (probably from Mr Gartside)
that the transfer fee was £1m and then was to liaise with SEM which he obviously did.
106.
Mr Gartside's evidence on the point was not satisfactory. He says that he got the personal
terms of the deal from Mr McParland or Mr Lee. That may well have been right. But while
he now says that he approved the appointment of SEM and obtained the transfer fee from
Mr Fitzgerald, the letter written by solicitors on his behalf on 9 July 2009 states that "he had
no personal involvement in the transfer of Mr McCann to Bolton" at all. His only answer to
this was that he did not consider his involvement relevant and while he appointed SEM he
did so only "indirectly"; but if he had no direct contact with Mr Weston or anyone else at
SEM it is wholly unclear who at Bolton did, since Mr Marland said it was not him. When
asked about paragraph 35 of his witness statement prepared for the McCann Action which
25
said that he was aware of SEM and "I have worked on both sides of the fence with SEM."
He replied that he did not know what the latter meant and that in fact he had not dealt with
SEM before.
107.
Possibly Mr Gartside did speak to Mr Fitzgerald to obtain from the horse’s mouth, as it were
the transfer fee. But it does not alter the fact that Mr McGill had already obtained it much
earlier from Mr O’Neill and communicated it to Mr McCann.
108.
As for Mr Weston as already noted, Mr McCann does not say he contacted him and Mr
Weston's own account as given to the FA was that he never contacted Mr McCann. So it
only left Mr Sheron.
109.
The result is that in truth, SEM did little or nothing for their fee.
Persuasion of Mr McCann by Mr Sheron
110.
I am quite sure that Mr Sheron was contacting Mr McCann before 7 June. But not pursuant
to the two alleged Neighbourhood meetings and early appointment by Bolton, not yet
documented. The truth, as I find it, is as follows.
111.
Having discovered that Mr McCann was on the move and the opportunity to poach him as
set out in paragraph 92 above, I am quite satisfied that Mr Sheron went on successfully to
persuade Mr McCann to leave Mr McGill as his agent and go with Mr Sheron (and thus
SEM) instead. The mere fact that this happened (with, as I find it, Mr McCann apologising
to Mr McGill for it) yields a sufficient inference of persuasion by Mr Sheron since there
would be no basis for Mr McCann simply leaving Mr McGill on his own accord. However it
goes further than that because I accept that Mr Sheron tempted Mr McCann with the
proposition that SEM was or would be acting as agent for the club so that there would be no
agency agreement for Mr McCann to enter. That meant of course that there was no basis for
Mr McCann being liable for any fee. Given the tax problem which Mr McCann had faced
earlier it is inconceivable that Mr Sheron did not also assure him that by SEM acting for the
club it could not arise. (As it happened the SEM Agreement did not remove the risk of a tax
issue because Bolton did issue a P11D to Mr McCann - but that was not known at the time.).
I do not accept that there could not have been such an inducement because it was not (on Mr
McGill's case) an improvement on what he was giving Mr McCann in terms of covering tax
etc. In one sense it was, if Mr McCann was not having to make any agreement with an
agent and he would have the entire benefit of the increased wages so it was a very "clean
deal" for him. There is at least partial support for this in what Mr McCann told the FA in his
interview because there he said that he told Mr Sheron that he would not pay any tax and Mr
Sheron told him that he need not worry – he would not pay a thing because SEM would be
working for Bolton. Mr McCann then agreed to dismiss Mr McGill and did so and in effect
had SEM as his agent (albeit not pursuant to any agreement) until at a late stage this was
turned into an agency for Bolton.
112.
Some points over timing have arisen. Mr McCann said that his conversations with Mr
Sheron about actually joining Bolton (including tax and SEM acting for Bolton) came only
around 7 June. I have already dealt with Mr Sheron’s evidence about dates of conversations
in paragraph 101 above. I am in fact quite sure that the act or acts of persuasion by Mr
Sheron took place before 7 June. The opportunity was there from at least around 23 May and
Mr McCann was telling Mr McGill about a visit to Bolton with Mr Sheron by 28 May.
Although the SEM Agreement was not made until 8 June and the only documents pre-
26
figuring it are the emails of 7 June, that did not prevent Mr Sheron from tempting Mr
McCann away beforehand. Whether Mr McCann was told that SEM already had an
agreement with Bolton (which would not be correct) or that it would get such an agreement
does not matter. The key point is that Mr McCann was told about this as the mechanism by
which SEM would not look to him for any fee. So I agree with Mr Sheron that he did speak
to Mr McCann before 7 June about the move to Bolton but not as a result of the alleged
Neighbourhood meetings and an already agreed appointment in principle as agent for
Bolton. While it may be that Mr Sheron had to have attended Mr McCann’s medical because
another representative of SEM was not available, I consider that he would have been very
likely to have done so anyway given his close involvement in the whole deal for Mr
McCann.
The Agreements
113.
The actual signing process of the SEM Agreement is now tolerably clear. The SEM
Agreement was not prepared by Ms Gregson until Friday 8 June. On 7 June Mr Gartside
called to instruct her to prepare a contract and at 12.54pm Mr Marland told her it was for Mr
McCann and there would be a transfer agreement as well. At 10.07 on 8 June Mr Marland
emailed her with the personal terms and the transfer fee and agency agreement details. She
then spoke to him and was told to type in the date 1 June 2007 on the SEM Agreement. He
accepts that he must have given her that instruction and that there must have been a reason
but he cannot recall now what it was. That there must have been a reason is heightened by
the fact that such agreements are often signed and dated the same day as the transfer even
though work pursuant to them went on before. At 10.24am Mr Weston emailed Ms Gregson
with the agency payment dates.
114.
By 11.17am the SEM Agreement had been typed up because she sent Mr Weston by fax a
blank copy for signature. He signed it and at least one copy of the completed agreement was
sent back undated. It was then given to Mr Gartside to sign. Ms Gregson then added "1.6.07"
in manuscript against both signatures (see 2/936). By a later fax timed at 12.59am a further
copy was sent to Mr Weston. It had already been signed by Mr Gartside but was undated.
Mr Weston added his own signature and dated it 1 June. See 2/950 which is plainly the same
copy sent to him on 8 June. See 2/980. There is then against Mr Gartside's signature a
manuscript date added which it is common ground was originally "8.6.07" but the 8 was
then changed to a 1. It is plainly the same writing as the date against Mr Weston's signature
but first, he refused in evidence to accept the obvious which is that he wrote 8.6.07 against
Mr Gartside's signature and then changed it, and later said that he could not remember. Mr
McGill's then solicitors obtained a copy of this document in July 2009 in the course of the
action against Mr McCann. A further copy was supplied by the FA on 1 September 2009
bearing the stamp of the FA dated 15 June 2007.
115.
It is worth noting that some of the documents, in particular signature sheets faxed to Mr
Weston on 8 and 9 June, only came to light during the trial after Mr Weston had completed
his evidence because it turned out that they were on a memory stick found in a drawer at
home by his wife. Quite why this was not found earlier is not explained. It is a serious
failure bearing in mind in particular that Mr Weston is himself a Defendant.
116.
On 8 June a Declaration of Payment to Agent form was also faxed by Bolton to SEM. Mr
Weston signed it on Monday 11 June or had signed it on 8 June and post-dated it.
27
117.
Mr Marland returned from holiday on Monday 11 June. He sent off to the FA on or about
that day the copy which had the altered date on it. This was received by the FA on 15 June
according to its date stamp. An internal version of the SEM Agreement had also been faxed
on 8 June. It is not clear when it was signed but it is dated in manuscript 11 June once it had
come back signed by Mr Weston. Mr Marland signed on behalf of Bolton so this could not
have been before 11 June because he was on holiday.
118.
By Clause 1 of the SEM Agreement, SEM was appointed to act as exclusive agent to Bolton
in connection with "attaining" the services of Mr McCann until 30 June 2007. By clause 4
payment of the three instalments of £100,000 was to be made on 1 August 2007, 2008 and
2009. By clause 6 such payment was conditional on Mr McCann becoming a registered and
contracted player for Bolton and if he had not by 30 June the SEM Agreement would expire.
119.
Mr McCann attended Bolton on 8 June for his medical and to sign the paperwork. He was
accompanied by Mr Sheron. The Player Contract was dated 11 June. It is signed by Mr
McCann, Mr Gartside, Mr Marland and Mr Weston and witnessed in part by Ms Gregson. It
could only have been completely executed, on 11 June because, again, Mr Marland did not
return from holiday until then. Finally the Transfer Contract between AV and Bolton is
dated 11 June and is signed by Mr McCann, Mr Marland, Ms Barnet for AV and Mr
Weston. It is then countersigned on 19 June by a representative of the Premier League who
effected the transfer. This means that the conditions for payment under the SEM Agreement
did not arise until 11 June at the earliest.
Backdating
120.
The Defendants' position on whether there was any backdating has shifted. SEM's Defence
said that SEM and Bolton agreed that the SEM Agreement while signed on 8 June was
nonetheless agreed to be dated 1 June "to reflect the intention of the parties that it was
entered into on 1 June" and that it should commence on 1 June. There is in fact no evidence
that SEM and Bolton actually agreed terms on 1 June. The original Defence of Bolton
suggested that it was signed on 1 June though amended shortly before trial to state that it
was signed on 8 June. By way of contrast, paragraph 14 of Mr Weston's WS dated 23
January 2014 said that he formally entered into the SEM Agreement on 1 June. He then
made a further WS on 14 March 2014 saying that having gone through the WSs and emails
he agreed it was signed on 8 June. He could not say why it was dated 1 June but said this
was a matter dealt with by Mr Marland.
121.
Mr Gartside accepted that his original position was that he signed the agreement on 1 June.
Asked why he now accepted that it was 8 June he said that it was because he had seen the
signed and dated agreement. But he would have seen that before, not least in 2009 at the
time of the McCann Action. He then said that it was because he saw the copy with the 8
changed to 1 June (the version sent to the FA) but that was available at the time of the
McCann Action and certainly by the time the original defence was filed in this action. Mr
Gartside was becoming visibly uncomfortable, I observed, when he was being asked
questions about this. I consider that he only accepted that he signed on 8 June when the
other evidence rendered such a concession inevitable.
122.
I consider that what in fact happened was that Mr Weston wanted to have the date of 1 June
put in to gave the appearance that SEM had been appointed by Bolton earlier than it had. He
did so because he was aware that SEM (acting through Mr Sheron) had taken Mr McCann
away from Mr McGill. Indeed I consider that he must have agreed it. He would have been
28
aware of Mr McGill's anger at least from Mr McCann. He must have asked Mr Marland to
have that date put on the agreement and then asked that the signatures have that date put
against them by Ms Gregson. Equally he wanted that date to appear on the copy he received
with Mr Gartside's signature already on. I do not consider this to have been a particularly
sophisticated exercise. I take the point that it might have made sense to backdate the
agreement even further so as to cover, for example, the conversations on 28 May but the
amateurish nature of the backdating does not alter the fact that his intention was to mislead. I
consider that Mr Weston thought, in a general way, that the backdating would or might
assist SEM if Mr McGill took action in relation to what happened, either by complaining to
the FA or by making a claim of some kind. It would give the impression that SEM had been
on board for at least a week and head off any suggestion that it leapt in at the last moment.
In this context the fact that such agreements were often signed on the day does not matter
because the focus of Mr Weston’s attention would have been this particular situation and the
allegations of foul play which Mr McGill might make.
123.
Mr Anderson's evidence on the question of the signing was unsatisfactory. Though not a
signatory, his WS in the harassment action stated (as if his personal knowledge) that SEM
was formally engaged on 1 June and he exhibited an unamended copy of the SEM
Agreement. In cross-examination here he maintained for the most part that this was still the
case. He said his evidence was based not on personal knowledge but what Mr Weston told
him. He then asserted, remarkably that he had not seen a contract "to this day" but later said
that he had seen it only since this action started.
124.
So far as Bolton is concerned, Mr Marland did of course agree to put in the date 1 June but I
do not think that Mr Weston would have explained why he wanted that date. I suspect that
Mr Marland was simply told that 1 June was appropriate since this is when SEM started
acting or some such and there was no reason not to go along with that since he had no
personal knowledge. As for Mr Gartside, while I am quite sure he has now become aware of
the backdating issue (and his own evidence on dates was not impressive - see above) I am
not satisfied that he either intended it be backdated for the reasons that Mr Weston did, or
that he was even privy to such considerations.
Mischaracterisation
125.
A factual foundation for one of the conspiracy claims discussed below is that the SEM
Agreement "mischaracterised" the role of SEM which in truth was to act as agent for Mr
McCann. I accept that at the early stages once Mr Sheron became involved, he and thus
SEM was indeed acting as agent for Mr McCann albeit without a contract. By no later than 7
June however, SEM had "switched" the agency into one for the club. That is what SEM
must have intended to happen given that this is what Mr Sheron effectively told Mr McCann
would happen. So SEM's role changed. Whether this means that the SEM Agreement itself
mischaracterised their role overall and what the consequences might be if it did, I discuss
below.
Post-transfer matters
126.
As noted above, Mr McGill complained to the FA which held an investigation. He added to
his original complaint about Mr Sheron, as time went on to include complaints about the use
of Mr Sheron as an unlicensed agent, SEM engaging in "switching", the backdating of the
SEM Agreement and various other matters as summarised in his email to Mr Murphy of 24
October 2009 . His complaints led to interviews being conducted with, among others, Mr
Weston on 31 July 2008 and Mr McCann on 29 April 2009. In late 2011 Mr McGill's
29
solicitors asked the FA about the progress of the enquiry but were told this was confidential.
They were told that any charges against participants for breach of the rules and regulations
and the outcome of those charges would be made public. In the event no action was
ultimately taken against anyone by the FA. However in relation to the original complaint
about Mr Sheron Mr Murphy did write to Mr Weston reminding him of the definition of
Agency Activity in the Regulations and then asking if Mr Sheron was employed by SEM
and if so in what capacity and details of the work undertaken. By his letter of 20 January
2009 Mr Weston responded that Mr Sheron did not carry out any agency activity but worked
in an administrative capacity and primarily arranged meetings between Mr Weston and
prospective clients and some running around with a role similar to that of a personal
assistant. By a reply the same day Mr Murphy replied that unless evidence to the contrary
became available this case was now closed. That, of course, cannot carry any weight here
where (unlike the FA) I have had to consider this issue in considerable depth and with a
large array of materials.
127.
There were then the proceedings brought against Mr McCann referred to above. As to why
he settled against him for such a low sum, given his legal costs, Mr McGill said that if the
trial went ahead he would be inconveniencing 16 people who would have to attend as
witnesses plus incurring legal costs of £15,000 per day. While he viewed Mr McCann as
having been tempted to break the contract he saw the real perpetrators as SEM and Bolton.
He agreed to take £50,000 to leave Mr McCann alone.
ANALYSIS - INTRODUCTION
128.
I now deal with the various causes of action pleaded against the Defendants in the light of
the facts found above.
INDUCEMENT TO BREACH OF CONTRACT
Existence of a contract
129.
Assuming, as I do, that Mr McCann and Mr McGill thought they were entering into an
agreement with the terms found above, the only question is whether the agreement was not
legally binding for some reason.
130.
The SEM Defendants argue that there was no intention to enter legal relations because the
McGill Agreement was unenforceable unless in writing. That does not follow. As a matter
of law the agreement was enforceable as an oral agreement, albeit that the FA could not
enforce it under its rules and procedures. And while Mr McCann did not want to sign a
written agreement, he did want Mr McGill to act for him and specifically agreed terms like a
limited duration and then instructed him to approach Mr O’Neill. Objectively he was clearly
agreeing to be bound. His actions and communications with Mr McGill after 6 April (as I
have found them) are only explicable on the basis that Mr McGill was acting as his agent
and he was dealing with and instructing Mr McGill as such.
131.
Then it is said that in truth Mr McCann never had any obligation to pay Mr McGill because
Bolton would pay. That is not correct because if Bolton did not pay there was an obligation
on Mr McCann to pay. And in any event he obviously had an implied obligation to cooperate with Mr McGill so as to enable him to earn his fee.
132.
The Bolton Defendants argue that the payment terms were insufficiently clear or certain. I
disagree; though there might be different ways of earning his fee the terms set out in
paragraph 51 above were clear in my view. Mr McGill would earn it if and when he
30
procured a new contract for Mr McCann either with a new club or with AV - by the end of
the current transfer window. It is then said that clause 4 of the draft written agreement was
incorporated into the oral agreement. This provided that the player was not obliged to use
the services of the agent and could represent himself in any negotiations or transactions
should he so desire. As to this, first it is not clear to me that this was incorporated anyway in
circumstances where Mr McCann did not even look at the document and where the term was
not obviously to be implied. But in any event, the new contract for Mr McCann, or a
transfer, were not matters where he chose to represent himself. He instructed Mr McGill to
procure them. That being so, he could not turn round at a later stage and seize the benefit of
Mr McGill's efforts for himself (assuming no other agent was involved) and just dismiss Mr
McGill, without being in breach. If it were otherwise, it would make a nonsense of the
agreement. Moreover, Mr McCann did not just elect to act for himself when he dispensed
with Mr McGill - he chose instead to use a new agent namely SEM, through Mr Sheron. In
truth SEM was acting for Mr McCann in finalising the deal, on the facts as found by me.
And the fact that in the end SEM "switched" into an agency for Bolton, makes no difference.
Knowledge of the McGill Agreement by SEM and Bolton
133.
On the facts as I have found them, Mr Sheron clearly knew that Mr McGill was acting as
agent for Mr McCann. Given the intense contact between Mr McGill and Mr Sheron from
March onwards it is inconceivable that Mr McCann did not tell Mr Sheron that Mr McGill
was acting as his agent. Indeed according to Mr McGill Mr McCann said that he had told Mr
Sheron this. If there was any doubt about the matter, Mr Sheron surely knew after the Wigan
meeting. He must be taken to have known that Mr McGill was so acting under an
agreement. He did not need to know its precise terms in order for knowledge to be
established.
134.
As for Bolton it knew through the knowledge of Messrs Spragia, Chapman, Worthington,
Lee and of course Mr McParland by no later than 28 May. I do not accept that Mr
McParland genuinely thought that Mr McGill was not the agent after speaking to Mr Horner
because I have rejected that account. At the very least Mr McParland was reckless as to the
existence of an agency agreement between Mr McGill and Mr McCann.
Inducement by Mr Sheron
135.
On the basis of what I have found in paragraphs 111 and 112 above, there was a clear
inducement of Mr McCann by Mr Sheron to break his contract with Mr McGill.
Inducement by Mr McParland
136.
According to Mr McGill, Mr McCann said on 7 June that Mr McParland told him to use Mr
Sheron. I accept that evidence. However, it is possible that Mr McCann was using Mr
McParland as an excuse and I have already given examples of where Mr McCann has not
told the truth. It is also not clear when Mr McParland would have said this to Mr McCann.
Mr McCann's telephone records show at least no outgoing calls or texts to the Bolton office
or to Mr McParland's mobile. Mr McParland was also away in Tenerife between 29 May
and 12 June according to his timeline document. In those circumstances I am not satisfied
that Mr McParland additionally induced Mr McCann as alleged.
137.
I do consider it likely that Mr McParland was informed at some point that the deal with Mr
McCann would go ahead and that this would be through SEM, but that does not constitute
inducement and in any event is not pleaded. It was also suggested that Bolton might be
31
guilty of inducing Mr McCann because it was "in someway responsible" for the actions of
Mr Sheron in inducing Mr McCann. That expression was used in Clerk & Lindsell on Torts
(20th Edition) at 24-39 in the context of the scope of direct inducement. I do not consider
that there was a sufficient connection between the wishes of Bolton and the actions of Mr
Sheron to justify finding Bolton liable for inducement as well.
Vicarious Liability on the part of Mr Sheron
138.
In acting as he did to get Mr McCann on board, Mr Sheron was clearly acting in the course
of his employment because in reality he was employed to speak to players and investigate
the prospects of SEM acting for them. The way he was described in SEM's website at the
time is a good illustration of this. The fact that he should not have been brokering deals from
an FA point of view, because unlicensed, cannot affect what was the course of his
employment. Moreover, this was not conduct which had any purpose other than benefiting
his employer SEM. He was thus authorised to do the acts of the kind that he did here albeit
that the particular act here involved the tort of inducement - see the principles laid down in
paragraph 15-20 of Lister v Hesley Hall [2001] UKHL 22 and paragraphs 19, 21 and 32-33
of Dubai Aluminium v Salaam [2002] UKHL 48. So if Mr Sheron is in fact liable for this
tort, so is SEM.
Causation and Loss
139.
Mr McGill's alleged loss is the commission he says he would have earned but for the
inducement to breach of contact committed by SEM. That is now put at £300,000. Indeed
that head of loss is the same for all the torts alleged against the Defendants. However, the
amended paragraph 133 (see paragraph 11 above) also makes it plain that Mr McGill alleges
(and has to show) that to get that commission he would have to have reduced the (oral)
McGill Agreement into writing by the close of the transfer deal which he says he would
have finalised for Mr McCann. It is not suggested that instead, Mr McGill would have
effected a "switch" and made an agreement to act for the club, or a dual representation
agreement. Given the requirements of the Regulations that Clubs should only deal with
agents who have made the relevant representation agreements and can only make payments
on behalf of a player (ie the agency fees owed by the player to the agent) who has entered
into such an agreement, this contention is not surprising.
140.
But it requires proof that Mr McCann would have signed such a written agreement. There is
in fact no real evidence that he would have done so. He was certainly unwilling to do so
when Mr McGill proffered him one on 6 April. There is no evidence (or plea) as to when it
would have been that he would have signed such an agreement. But if left to the last
moment, Mr McCann might have decided simply not to sign. He could have agreed his
terms personally. Mr McGill would not have been on strong ground in (for example) saying
that the club should not complete any paperwork in respect of Mr McCann until the issue
was resolved because contrary to the Regulations, he had not in advance obtained a written
agreement. Having heard and seen Mr McCann I do not believe that it would have been
beyond him to refuse to sign an agreement. After all, it is part of the reason why (according
to Mr McGill's case and as I have found) why he was seduced away from Mr McGill by Mr
Sheron.
141.
Moreover it was never put to Mr McCann that he would have signed a written agreement by
the end. Mr Budworth, for Mr McGill, did not deal with this point when making his closing
remarks. Having accepted that by reason of the amended paragraph 133 he needed to prove
that this would happen (given particular emphasis by Mr Berragan in his oral closing
32
submissions) he simply argued that it would have done. That fact is not made and even the
evidence of Mr McGill (which was not really directed to this issue) was thin to say the least.
Possibly there might at the end have been some discussions between Mr McCann and Mr
McGill as to what fee Mr McCann (or perhaps Bolton) would agree to pay, but the amount
is unclear and the case has not been put on the basis of loss of a chance.
142.
That being so I am quite unable to find that Mr McCann would have signed a representation
agreement such that a commission would then have been paid out to him. That means that
the claim founded upon inducement must fail. Given that I have upheld Mr McGill's factual
contentions on the preceding matters, that might seem an unfortunate result but (a) it must
follow given how Mr McGill's case was eventually put and (b) part of the problem for Mr
McGill is and has always been that he did not have a written representation agreement with
Mr McCann as the Regulations required. To that extent he was always at risk. It is important
not to lose sight of this among the various allegations made by Mr McGill as to breach of
the Regulations by others eg unlicensed agency activities by Mr Sheron or agency activities
by SEM before the SEM Agreement was actually made.
143.
Apart from the quantum meruit/unjust enrichment claim, this finding disposes of the other
claims as well. However, in deference to the extensive arguments on the other claims, I turn
to deal with them.
BREACH OF CONFIDENCE
Introduction
144.
Although not originally at the forefront of Mr McGill's claims, in closing Mr Budworth
described it as the "front runner".
145.
The alleged confidential information is said to be the "package" of the following:
(1)
Mr McCann's willingness to go to Bolton;
(2)
For wages of around £26,000 per week for a 3 year term;
(3)
AV's willingness to sell him for £1m and to agree a transfer on that basis.
("the Information")
146.
It is then said that the Information was communicated to Bolton by Mr McGill via Messrs
Chapman and McParland. Bolton then, and in breach of confidence passed the Information
to SEM. Alternatively, SEM received the Information from Mr McCann. Either way, SEM
was in breach of confidence in then using the Information to make a deal with Bolton for
itself.
Analysis
147.
The elements of the tort of breach of confidence are well known, as set out by Megarry J in Coco v A
N Clark (Engineers) Ltd [1969] RPC 41, 47:
"First, the information itself...must 'have the necessary quality of confidence about it.
Secondly, that information must have been imparted in circumstances importing an
obligation of confidence. Thirdly, there must be an unauthorised use of that information to
the detriment of the party communicating it."
148.
One way to describe the quality of confidence is to say it is information which is not
generally available to others and which the possessor does not wish to be generally available
33
see paragraph 55 of the judgment of the court in Douglas v Hello (No. 3) [2006] QB 125.
And in the House of Lords in the same case ([2008] 1 AC 1) the majority emphasised the
elements of commercial value and control which the "owner" could exert so as to impose of
duty of confidentiality concerning the information.
149.
Looked at individually it is hard to see that there is the required degree of confidence and
importantly that it is Mr McGill's confidential information:
(1)
Mr McCann's willingness to move cannot be confidential; often (as here) it is
publicised in the press. And in any event any confidence would rest in Mr McCann not Mr
McGill;
(2)
The same is true of the personal terms which Mr McCann would accept;
(3)
AV's willingness to let Mr McCann go for £1m. I am doubtful whether this piece of
information is confidential certainly at this end of the market. While Mr O’Neill gave this
information specifically to Mr McGill there is no reason to think he would not have said the
same to any other interested party. There was some debate here about whether, without
more, this information as given to Mr McCann was limited to him in the sense that AV was
not willing to let anyone else speak to Mr McCann. I do not think that it was, without more.
See further the discussion at paragraph 173 below. And finally, if such information was
confidential it was such in the hands of AV not Mr McGill.
150.
Nor can it be said that Mr McGill controlled the Information because SEM or Bolton could
always have approached AV on the question of permission to speak to Mr McCann. The rest
of the Information was not created by Mr McGill but came from Mr McCann.
151.
Nor do I consider that it makes any difference if these individual elements are viewed only
as a package. I agree that the package, once known by SEM was commercially useful
because it did not have to do the work which Mr McGill did. But the mere gathering
together of terms for a potential contract does not render them confidential.
152.
And even if some or all of the Information was confidential, it could not belong to Mr
McGill who was acting as simply as agent for Mr McCann not as a principal. Indeed it is
hard to see that it was imparted in confidence to Bolton. It was communicated to many other
clubs and it is hard to see that there could be a complaint if any of those clubs passed it to
other clubs. If the retort is that they at least should not impart it to another agent it becomes
difficult to draw the boundaries because one is then saying that the Information is barred to
some and not others. And there is no evidence that when Mr McGill gave the Information to
Bolton he even did so under conditions of confidence. In other words it was not treated as
confidential. That being so Bolton could use it as it wished. No question of misuse thus
arises. Moreover, it is far from clear that it was Bolton which gave the Information to SEM more likely SEM obtained it from Mr McCann himself via Mr Sheron.
153.
As for SEM, while I can see that if the Information was confidential in its hands and
belonged to Mr McGill, it could have been in breach of confidence by acting on it to secure
its agency with Bolton, the fact is that it was not confidential.
154.
The real thrust of Mr Budworth's submissions, in my judgment was the general complaint
that it was wrong and unfair for SEM to take the deal which Mr McGill had done and for
Bolton to assist SEM. But without more, this does not generate a claim for breach of
confidence at the instance of Mr McGill. The proper way to analyse what happened here was
inducement to breach of contract, if anything, as to which see above. And as with
34
inducement, the breach of confidence claim would fail anyway because causation and loss
could not be proved.
QUANTUM MERUIT AGAINST BOLTON
155.
As an alternative to all other claims, Mr McGill claims a quantum meruit against Bolton on
the basis that it gave the Information to it which was of real value in the expectation that it
would be paid for.
156.
The first answer to this is that I have found that there was the McCann Agreement, for
which Mr McGill had his remedies. Since that was his expected vehicle for compensation
for his services I cannot see that he has a restitutionary claim against another party just
because his real claim has failed.
157.
In any event there is no basis for the claim. Mr McGill never had negotiations with Bolton
which were intended to lead to a contract with it and where Bolton accepted services in the
knowledge they would be paying Mr McGill for them. Further, Mr McGill provided the
Information to Bolton as part and parcel of the services he rendered to Mr McCann as his
agent.
CONSPIRACY TO INJURE
The Claim
158.
Paragraphs 64-92 of the Re-Amended Particulars of Claim alleges conspiracy to injure
against all Defendants. The acts alleged are in essence those of omission against a
background where all knew of Mr McGill's exclusive agency with Mr McCann (or were
reckless as to its existence) and thus knew by 8 June that he was being cut out of the deal. In
some cases the Defendants knew of Mr McGill's express complaints which had started on 8
June. See paragraph 95 above. The omission was the failure to do anything about this
transfer based on SEM's involvement, going forward. Thus Bolton permitted the transfer to
conclude on 11 June and failed to report Mr Sheron for acting as an unlicensed agent and
other regulatory breaches like tapping up and SEM working before any agency contract was
signed, and Bolton also facilitated SEM getting its agency. In respect of Mr Lee it is said he
should have prevented the transfer, while Mr McParland simply allowed the deal based on
SEM's involvement to go ahead. Mr Marland assisted by agreeing SEM's fee, while Mr
Gartside failed to act by for example not enquiring into an unusually large fee charged by
SEM. Mr Sheron assisted the conspiracy by cutting Mr McGill out in the first place, and Mr
Weston assisted this as did Mr Anderson who must be taken to have known what Mr Sheron
and Mr Weston were doing, and so SEM is itself liable as well. The loss alleged, as with the
other torts pleaded is the commission which Mr McGill would have earned in the
circumstances referred to in the amended paragraph 133 of the Re-Amended Particulars of
Claim.
The Law
159.
It is well-established that for this tort to be made out, where the means themselves are
lawful, there must be a predominant intention to injure the claimant. See Clerk & Lindsell
24-92. One way of testing whether there is such an intention is where the agreed action goes
beyond the advancement of legitimate interests. So in the case of trade union activity for
example, where union interests are genuinely being pursued there cannot be the required
predominant purpose to injure. But in other contexts the question can be framed as to what
the real purpose was and this requires an examination of whether the claimed purpose was
35
spurious or not. Is the only real or predominant purpose in truth to injure the claimant? See
the judgment of Lord Bridge in Lonrho v Fayed [1992] 1 AC 448 at p465H.
160.
In this context Mr Budworth relied upon paragraphs 164-167 of the judgment of Lord
Nicholls in OBG v Allan [2007] UKHL 21 dealing with the question of intention to injure.
But that was in the context not of conspiracy to injure but the tort of unlawful interference.
So the observation that if the defendant proceeds in circumstances where his intended gain is
the claimant's loss, the intention to injure is made out, is irrelevant here.
Analysis
161.
Proof of the required predominant intention to injure is perhaps more difficult where the
essential act alleged is the failure to act, because such a failure could be equally consistent
with inertia. Equally the existence of the required agreement or understanding may be more
difficult to prove. What the facts boil down to, in my judgment is an unwillingness of some
or all of the Defendants to rock the boat where a very convenient deal presented itself in the
form of SEM acting for the club with a package of terms that could easily go forward. As
Mr Gartside said to the press at the time, it was one of the easiest deals he had done. That
being so there was simply no interest in for example preventing the transfer going ahead on
11 June. Moreover, what was plain by 8 June if not before, was that while Mr McGill may
have had an exclusive agreement, he did not have a written representation agreement as
required by the FA. What the FA may have done when faced with a complaint by Bolton,
for example, is wholly speculative. I take the point that the backdating of the SEM
Agreement was designed to give the impression that that SEM had been appointed earlier
than they had, but the overall object of the conspiracy alleged here was, according to Mr
Budworth, to do nothing. I simply cannot see that as amounting to a predominant intention
to injure nor can I see sufficient evidence of a common agreement or understanding to do
nothing with that intention.
162.
In any event and as noted above, causation and loss cannot be established. So for all the
reasons given, this claim fails.
CONSPIRACY TO USE UNLAWFUL MEANS
Introduction
163.
As against all Defendants, paragraphs 99 - 106 of the Re-Amended Particulars of Claim
allege conspiracy to use unlawful means, such means being:
(1)
Breach of confidential information;
(2)
Inducement to breach of contract by Mr Sheron and Mr McParland;
(3)
Backdating of the SEM Agreement by Mr Weston, Mr Marland and Mr Gartside;
(4)
Regulatory breaches, namely
Tapping-up
(a)
Breach of Rules K1 and K3 of the Premier League Rules and Art. 18 (1) of
the FIFA Regulations on the Status and Transfer of Players because Bolton
had entered negotiations with Mr McCann before making official contact
with AV to obtain its permission; (this could equally have invoked 12.14 of
the Regulations);
36
(b)
Similarly and in breach of Reg. 14.9 of the Regulations (supra) SEM did not
obtain AV's consent before talking to Mr McCann;
Inducement
(c)
Breach of Reg. 14.8 of the Regulations which prevents a Licensed Agent
from inducing a player to break his contract with another Agent;
Unlicensed Agent
(d)
Breach of Reg. 12.2 involving the use of an Unlicensed Agent viz Mr Sheron;
Conflict of Interest
(e)
164.
Breach of Reg. 14.27 of the Regulations by SEM because it failed to disclose
to Bolton or AV its conflict of interest due the fact that AV owed it a further
payment in July 2007, because it acted for AV on Mr McCann's previous
transfer and so knew details of his correct contract and it had acted for Mr
McCann in the previous transfers.
The proposed amendment is by way of an addition to paragraph 103 which deals with the
backdating by unlawful means. In summary it alleges the following criminal acts
Forgery
(1)
The SEM Agreement was a false instrument within s 9 of the Forgery and
Counterfeiting Act 1981 because of the backdating and/or the fact that it falsely
characterised SEM's role as agent for Bolton when in truth it was agent for Mr
McCann. Bolton, Mr Weston, Mr Marland and Mr Gartside were a party to the use or
making of that instrument;
(2)
In using or making that instrument those parties intended
(a)
the FA to accept it as genuine but absent the falsity the FA would have
investigated and found regulatory offences (eg acting as agent before a
written agreement made) which might have led to a refusal to or delay in the
processing of the transfer or make Mr McCann have second thoughts about
leaving Mr McGill. Even if this did not lead to Mr McGill completing the
transfer and earning a fee, his role would have to be acknowledged and he
would have gained something; and/or
(b)
That Mr McGill would act to his own prejudice because when he became
aware of the details of the SEM Agreement, he would be less inclined to
pursue his complaints;
(c)
That HMRC would accept the SEM Agreement as genuine and so act to its
own prejudice in assuming thereby that Bolton was entitled to reclaim VAT
or avoid paying NI contributions.
Fraud
(3)
Further or alternatively, those parties made false representations dishonestly
intending to make a gain for themselves or cause or cause the risk of loss to Mr
McGill contrary to section 2 of the Fraud Act 2006;
(4)
Further or alternatively, the same parties acted contrary to section 3 by dishonestly
failing to disclose to the FA the true nature and character of the SEM Agreement
despite being under a legal duty to do so;
37
(5)
Further or alternatively, the false representations were a fraud on HMRC and there
was a dishonest failure to disclose the true character of the SEM Agreement to
HMRC by which the parties intended a gain for Bolton in being able to claim VAT
or avoid NI contributions and avoid grossing up.
The Law
165.
This form of conspiracy is committed where "two or more persons combine and take action
which is unlawful in itself with the intention of causing damage to a third party who does
incur the intended damage. It is not necessary for the injured party to prove that causing him
damage was the main or predominant purpose of the combination but that purpose must be
part of the combiners' intentions." See Clerk & Lindsell 20th Edition at 20-95. And as with
any tort, causation and loss must then be proved. Sometimes (as here) more than one
unlawful means is alleged, although often as a different legal way of expressing the same
thing. But it must be the case that in relation to each unlawful means alleged the relevant
intent thereby to injure the claimant must be proved, as must the fact of such injury and as
must loss and damage flowing thereby. I do not accept the submission made by Mr
Budworth in closing that it matters not if the commission of one particular unlawful means
cannot be shown to have led to any particular loss so long as some loss overall resulted from
the conspiracy. If one particular unlawful means did not lead to any loss, then its inclusion
as an unlawful means is entirely superfluous. If it is in truth the only unlawful means
alleged, or made out, then an absence of causation and loss entails the failure of the entire
conspiracy claim. Mr Budworth referred me to pages 465 and 468 of the judgment of Lord
Bridge in Lonrho (supra) and to paragraph 120 of the judgment of Nourse LJ in Kuwait Oil v
Al Bader [2000] 2 All ER 271 but these passages do not assist him on this point.
166.
I accept of course that proof of the allegations which found the conspiracy may often be
established by inference especially in relation to the required agreement. See paragraphs
262-264 of the judgment of Ang Saw Ean J in the High Court of Singapore in The Dolphina
[2011] SGHC 273.
Breach of Confidence
167.
For the reasons given in paragraphs 144 to 154 above, I found that there was no breach of
confidence.
Inducement to Breach of Contract
168.
This has been made out in relation to SEM and Mr Sheron. For these purposes I would be
prepared to accept that Mr Anderson and Mr Weston were aware of the inducement and
positively went along with it so as to make them co-conspirators.
169.
Having found that neither Bolton nor Mr McParland individually were liable for inducement
(see paragraphs 136 to 137 above), I need to consider whether they could nonetheless have
been party to an agreement or understanding that SEM induce Mr McCann to break his
contract, the act of inducement obviously having occurred some time before 7 June given
the extensive contact between Mr Sheron and Mr McCann from late May onwards. In my
judgment there is insufficient evidence of any such agreement. Accordingly neither Bolton
nor Mr McParland are liable in conspiracy to use this unlawful means.
170.
In any event, the only loss said to result from this conspiracy is that set out in the amended
paragraph 133. For the reasons already given in paragraphs 139 to 142 above, causation and
loss is not made out.
38
Backdating
171.
In its original form in paragraph 103 it is difficult to see what the unlawfulness constituted
by the backdating was. This is now captured in the proposed amendment, dealt with below.
Regulatory Breaches
172.
The first question is whether a breach of any of the relevant Regulations can be treated as
unlawfulness for the purpose of this tort. In my judgment they cannot because they must at
least consist of a breach of civil or criminal law. See Clerk & Lindsell at para. 24-73. If so,
that is the end of this head of unlawful means. But lest I be wrong I consider them further.
173.
In relation to tapping-up while the express written permission of the player's club is required
before any approaches can be made (and Mr McGill never obtained any), his position has
been that Mr O’Neill's oral permission was sufficient. No doubt it could be argued that there
was something like a waiver or estoppel on the point if someone (like Mr McGill) relied
upon it. That being so I cannot see how the Defendants could be in a worse position unless
(as Mr Budworth has argued) Mr O’Neill's permission was personal to Mr McGill. It seems
to me that in relation to the relevant tapping-up provisions a club could either give limited or
general permission to approach the player and/or negotiate for him. It all depends on the
circumstances. Where the position is not made clear expressly the question is what
objectively can be drawn from the facts. In my judgment, Mr O’Neill's permission was
general albeit expressed to only one person. Mr McCann was not some highly prized striker
at the peak of his career where any approach might be very carefully regulated. He was
someone in whom, by the end of the season, AV had lost significant interest and provided it
received £1m they were happy for him to go which is what Mr O’Neill said. If some other
club had approached Mr McCann after this and Mr O’Neill found out I cannot see that he
would have been surprised. SEM and Bolton were entitled to proceed on the basis of what
they had found out which was that not only was AV willing to let him go, it had already
named its price.
174.
As for agency activities prior to the making of the SEM Agreement, technically this is
correct because on any view SEM was working with Bolton to tie up the deal at least by 7
June. The position of the FA, however, seems to have been that provided a written
agreement was put in place at some point, any prior activity was not viewed as leading to a
breach. On that footing there was no unlawfulness here.
175.
As for unlicensed agent, on the facts as I have found them, while Mr Sheron undoubtedly
carried on agent’s work without a licence, the question is whether Bolton was in breach of
Art. 12.2. It is not clear how much Bolton dealt with Mr Sheron as opposed to Mr Weston
(who was licensed) save that it knew that the driver from SEM's point of view was Mr
Sheron. Moreover this point was not put to any of the Bolton witnesses.
176.
As a result I cannot find the claimed unlawfulness here.
Backdating and mischaracterisation
177.
Accordingly that leaves the new allegations on backdating and mischaracterisation.
Permission to Amend
178.
The application to add paragraph 103.1 has had a late and unsatisfactory history and the
Defendants were well entitled to reserve their position on the amendment throughout. It is
39
true that much (though not all) of the factual underlay to paragraph 103.1 was well in issue
and would have been canvassed in evidence in any event, especially the general inferences
which might be drawn from backdating and mischaracterisation aspects. As for the other
elements of paragraph 103.1 Mr Budworth was permitted to cross-examine somewhat
further and was prepared to limit the material he could rely upon in support of paragraph
103.1 to the evidence adduced at trial. Moreover, without prejudice to any amendment, all
parties were able to and did address paragraph 103.1 substantively in their closing
submissions; in particular Mr Berragan did so at some length. That said, it is quite clear that
the new plea did not articulate in any real way the causation and loss said to flow from these
unlawful means, and not all of its aspects were even put to all the relevant witnesses. This is
particularly unsatisfactory given its late arrival at trial and the fact that it could have been
formulated much earlier. I also bear in mind the points made in paragraph 9 of the SEM
Defendants’ Closing Submissions to the effect that the amendment had no real prospect of
success. I also have taken into account paragraphs 3-11 of the Bolton Defendants’ Closing
Submissions and the points on merits which follow them. But given the fact that the
amended claim has been canvassed in submissions, I consider it would be artificial now to
disallow the amendment. Points on the merits, however strong, can be left to be considered
when deciding the substance of the matter. In those circumstances I allow the amendment as
drawn in paragraph 103.1 but on the footing that Mr Budworth is strictly confined to what
he can glean from the evidence given and by reference to what was put to the relevant
witnesses. These are particularly important parameters given that what is alleged is the
commission of criminal offences.
Timing
179.
The decision that SEM would have an agency with Bolton cannot have been made between
them later than early on 7 June because the substantive emails of that day are already on the
basis that SEM will act for Bolton. And any decision to backdate must have been made by
very early on 8 June because it is on that morning that Mr Marland gives Ms Gregson the
instruction to type out the SEM Agreement and date it 1 June. Anything that happened later
is therefore irrelevant when assessing the Defendant's intentions in relation to the criminal
offences of forgery and fraud said to have been committed. In relation to the FA, the only
complaint which Mr McGill had made (by email at 7.28am on the morning of 8 June) was
that the use of Mr Sheron as an unauthorised agent. Otherwise there were just the texts to Mr
McCann the day before, along with the brief call to Mr Gartside. I am prepared to accept
that there was such a call which would have told Mr Gartside that Mr McCann was
complaining about something (see his email complaint to the FA of 20 June 2007). But I do
not consider that this takes matters very much further.
Using/making a False Instrument
Introduction
180.
Section 1 of the Forgery and Counterfeiting Act 1981 provides that:
"A person is guilty of forgery if he makes a false instrument, with the intention that he or another
shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to
do some act to his own or any other person’s prejudice."
181.
Section 3 provides that:
"It is an offence for a person to use an instrument which is, and which he knows or believes to be,
false, with the intention of inducing somebody to accept it as genuine, and by reason of so accepting it
to do or not to do some act to his own or any other person’s prejudice."
40
182.
The unlawfulness alleged here is the making and/or using of a false instrument.
False Instrument
183.
The ways in which an instrument may be false are set out in s9 (1) of the Act. The
backdating rendered the document false because the document itself suggests that it was
signed on 1 June when it was not. See s9 (1) (g) of the Act. The party who brought that
about was Mr Weston. However, I do not consider that the "mischaracterisation" made it
false. In order to be a "false instrument" the instrument concerned must "tell a lie about
itself" as opposed to about the extraneous circumstances surrounding it. See Archbold (2014
Edition) at 22-18 et seq. On that basis I cannot see how any mischaracterisation in the sense
that the document misdescribes the true agency of SEM can be a false instrument.
Accordingly I restrict my further analysis of this claimed unlawfulness to the backdating
element only.
The Relevant Intention
184.
It is alleged first that it was intended that the FA would accept the document as genuine (in
the sense of actually being made on 1 June) and in so accepting act to the prejudice of Mr
McGill. At this point I am concerned with intention, not consequences. But I must do so in
the context of the pleaded case which, at paragraph 103.1 (c) makes a number of highly
specific allegations of intention and knowledge. I have to assess this in the light of my
factual finding made in paragraph 122. That paragraph concerns Mr Weston only. And while
the matters raised in this new plea were put to Mr Weston, they were not put to Mr Sheron
or Mr Anderson. And as for the Bolton Defendants, their intentions in relation to backdating
did not go that far anyway – see my finding in paragraph 124 above. What this means is that
the parties to this conspiracy to use unlawful means are limited to Mr Weston and SEM
which renders the point academic since it is likely that as employer and employee they
would not be regarded as separate conspirators anyway. That said I deal briefly with the
allegation as it concerns Mr Weston.
185.
Notwithstanding my finding in paragraph 122 above I do not consider that the pleaded
intention here is made out. I say that in particular because it does not follow from such
finding that Mr Weston knew that but for the backdating the FA was likely to have made
investigations and concluded that regulatory offences had been committed including tapping
up, unlicensed agency activity and agency activity before the making of the agreement.
Indeed it is hard to see how the dating of the agreement could affect questions of tapping up
and unlicensed agent at all. As some evidence of the approach which the FA might take, Mr
Budworth cited the fact that Mr Murphy confirmed during the interview with Mr Weston
that the FA had all of the forms and documentation. But that does not itself tell one much
about the significance attached to the date. There is a difference between the general and
unfocussed intention which I have found in paragraph 122 and what is required here.
186.
The second way the matter is put is at paragraph 103.1 (d) where the intention was that
when Mr McGill complained to the FA and was informed of the date on the agreement, he
would be less inclined to take it further. I do not see much force in that. Mr Weston’s
intention was not so much to disincline Mr McGill from continuing a complaint as simply to
make its success less likely. The points about the matter only being put to Mr Weston apply
equally here.
187.
The third way the matter was put was an intention that the HMRC act in a particular way
because of the mischaracterisation - but the latter is not relevant here as explained above.
41
Conclusion on Forgery
188.
Accordingly there was no unlawful means on the basis of forgery.
Fraud
The particular frauds
189.
As pleaded these were as follows:
(1)
Making false representations dishonestly intending to make a gain for themselves or
cause or cause the risk of loss to Mr McGill contrary to section 2 of the Fraud Act
2006 in that:
(a)
The intended gain was
(i)
SEM being able to persuade Mr McCann to let them do the deal on
the footing it was acting for Bolton and/or
(ii)
Bolton reclaiming VAT on the fee paid to SEM and/or
(iii)
avoiding the need to gross up Mr McCann's wages and/or
(iv)
SEM being paid in 3 large tranches;
(b)
The intended loss was the exclusion of Mr McGill from a deal he otherwise
would have or may have done;
(“Claim 1”)
190.
(2)
Acting contrary to section 3 by dishonestly failing to disclose to the FA the true
nature and character of the SEM Agreement despite being under a legal duty to do so
under rules E1, 3 and 14 of the FA Rules or Regs B1, C2, E1 or E2 of the Football
Agents Regulations by which they intended to make a gain or cause loss or risk of
loss to Mr McGill;
(“Claim 2”)
(3)
Further or alternatively, the false representations were a fraud on HMRC and there
was a dishonest failure to disclose the true character of the SEM Agreement to
HMRC by which the parties intended a gain for Bolton in being able to claim VAT
or avoid NI contributions and avoid grossing up.
(“Claim 3”)
I deal with each claim in turn.
Claim 1
191.
I accept that the backdating amounted to a false representation. I also accept that the SEM
Agreement was a misrepresentation insofar as it suggested that SEM's only involvement had
been to act for the club whereas at least at the start it was acting as agent for Mr McCann
through Mr Sheron even if the only club it needed to deal with was Bolton because of the
work already done by Mr McGill.
192.
However, as to the intended gains all of which concern mischaracterisation only:
(1)
Gain (i): As noted above, I think the real incentive for Mr McCann was that SEM
would arrange things so that they would have an agreement with Bolton and not
with him. That is what happened. Whether it masked what the nature of their role
was at the beginning would have been neither here nor there as far as Mr McCann
was concerned; and I am not satisfied that there was any false representation made to
42
Mr McCann. He must have known (and according to what he told Mr McGill did
know) that he was switching agents and so knew that SEM were now acting for him.
But he also knew that when the deal was done they would be shown as acting for
Bolton and he would have no agreement with any agent; this intended gain was only
put to Mr Weston so I cannot see how it can found a conspiracy;
193.
(2)
Gains (ii) and (iii): I do not accept that there was in any event dishonesty so as to
gain a VAT advantage. I think Bolton would have agreed to pay any fees due by the
player to an agent had circumstances been different. They agreed to a club agency
because that is what was discussed and offered and not because of some ulterior aim
to procure a VAT reclaim. The other gain concerning grossing up was not put but in
any event I see no dishonest misrepresentation here; moreover it is impossible to see
how there could have been any intent to injure Mr McCann by reason of the
allegedly intended financial gains to Bolton; finally this matter was put to Mr
Gartside only so there is no basis for the conspiracy;
(3)
Gain (iv): this point was not put to Mr Weston (or anyone else) but in any event there
was no evidence of a dishonest intention to make these representations to gain this
particular advantage;
As to the intended loss, which conceivably could cover backdating and/or
mischaracterisation, Mr Budworth confined his submissions here to backdating. See
paragraph 13 of his Skeleton Argument for trial. Insofar as the loss is said to have come
from the misrepresentation about date being made to the FA, it seems to me that Mr
McGill’s detailed case on intention is really the same as that pleaded in paragraph 103.1 (c)
and (d). If so the intention is not made out. But even if the intention alleged here is less
specific and is made out, it is an intention, again, held only by Mr Weston. Claim 1 was not
put to either Mr Sheron or Mr Anderson so they could not be considered co-conspirators in
any event.
Claim 2
194.
This matter was only (partially) put to Mr Gartside. What was put was the backdating not
the mischaracterisation. He accepted that if the SEM Agreement was only made on 8 June,
then there must have been agency activity in relation to Mr McCann before then and this
was probably a breach of rule B1. It was then put that there was a breach of Rule 14 of the
FA Rules which obliged parties like Bolton to report any matters which might constitute
misconduct, which here, was said to be the backdating. Mr Gartside accepted he made no
such reports and was not aware of the backdating at the time. As to this claim:
(1)
I do not accept that any of these Regulations amount to "legal duties"; the reference
by the Law Commission in the Report cited in paragraph 8 of Mr Budworth's
Skeleton Argument for Trial to "custom of a particular trade" does not help him since
this was clearly referred to in the context of terms which might be incorporated into a
contract;
(2)
The context of this claim has to be at around the time of the transfer and not much
later. But I accept that Mr Gartside was not aware of the backdating at the time and
even if he was I do not believe that he dishonestly failed to disclose. Indeed that he
was dishonest was not even put to him.
(3)
Since these matters were at best only put to Mr Gartside, I fail to see how this claim
could constitute an agreed unlawful means conspiracy anyway.
43
Claim 3
195.
Again this matter was only put to Mr Gartside. As to that:
(1)
There is a question as to the "true character" because, for the reasons given above,
the SEM Agreement, albeit made belatedly, could be consistent with SEM having
engaged in (undocumented) agency activity on behalf of Mr McCann before 7 June
and then "switching" into the agency for the club pursuant to which they then
delivered Mr McCann. So I am not satisfied that there was a failure to disclose the
true character of the SEM Agreement as distinct from (for example) a failure to
disclose the prior agency activity as discussed under Claim 2 in the preceding
paragraph;
(2)
See paragraph 192(2) above; the points about NI and grossing up were not put to Mr
Gartside.
(3)
Once more there can be no conspiracy since the claim was only put to Mr Gartside,
Causation and Loss on all the forgery and fraud claims
196.
In relation to the unlawful means constituted by forgery and/or fraud, to the extent that this
could have been made out at all, the claim is fundamentally flawed because it is not pleaded
or explained how in fact any agreement to commit those particular wrongs caused Mr
McGill any loss. The effect of the backdating and alleged mischaracterisation is simply not
explained. So it is not said, for example, that had the FA known of the true signing date or
SEM's prior activity as agent for Mr McCann, then events would have been different in such
a way that Mr McGill would have received £300,000 or indeed any particular sum. And one
comes back to the point that even if the FA's investigation may have proceeded differently it
would have been unlikely to assist Mr McGill without a written representation agreement
with Mr McCann, and there would still be the question of what Mr McGill would have got
out of it. It is not suggested, for example, that the FA could have awarded compensation to
Mr McGill. Nor is it explained how obtaining a VAT advantage could be causative of any
loss to Mr McGill. The only statement of causation and loss is that set out in the amended
paragraph 133. It is obvious that this cannot flow from the new elements of the unlawful
means conspiracy.
197.
Mr Budworth said that all Mr McGill had to show was the relevant intent to prove the
forgery and fraud allegations, and not actual loss. That is true as far as it goes but irrelevant.
The point is, in relation to the conspiracy (a) the missing proof of an intention to injure Mr
McGill in respect of part of Claim 1 and all of Claim 3 in fraud and (b) the missing proof of
causation and loss in respect of all claims.
WRONGFUL INTERFERENCE/CAUSING LOSS BY UNLAWFUL MEANS
198.
Mr Budworth accepted in closing argument that (a) this claim was duplication if the
conspiracy by unlawful means succeeded and (b) if the conspiracy claim failed, this
additional claim could probably not rescue the position, since it was put on the basis of a
common understanding between joint tortfeasors. I agree. This claim fails for all the reasons
that the conspiracy claim fails.
199.
But in addition this claim is fatally flawed because what must be proved, among other things
is some unlawful act committed by the Defendant against the third party. As Lord Hoffman
put it in OBG v Allan [2008] 1 AC 1 at paragraph 51 the cause of action:
“...consists of acts intended to cause loss to the claimant by interfering with the freedom of a third
44
party in a way which is unlawful as against that third party and which is intended to cause loss to the
claimant. It does not in my opinion include acts which may be unlawful against a third party but
which do not affect his freedom to deal with the claimant.”
and see also Clerk & Lindsell at 24-70 and 24-73.
200.
The only relevant third party could be Mr McCann. But none of the unlawful means pleaded
in paragraph 112 of the Re-Amended Particulars of Claim were unlawful as against him. In
paragraph 39 of his Opening Skeleton Argument, Mr Budworth shifted the ground to what
he claimed was a fraudulent misrepresentation made upon Mr McCann and reference was
made back to paragraph 48 where it is said that Mr Sheron incorrectly told Mr McCann on 7
June that “Bolton are paying us”. I dealt with that point in paragraphs 111 and 112 above. I
do not see any real misrepresentation of Mr McCann, certainly not fraudulent. What he was
told was that if he came with SEM he would not have to pay a fee and would avoid tax
because of the intended mechanism of an SEM agency for Bolton. That mechanism was set
up. The fact that Bolton then decided to send out a Form P11D afterwards is not to the point.
201.
In any event, it is impossible to see how the Bolton Defendants could have been party to a
wrongful interference on this basis.
THE JAMESON POINT
202.
All Defendants have take the point that because Mr McGill sued Mr McCann and recovered
at least something, he is now debarred in any event from being this separate claim against
them. They rely on the case of Jameson v CEGB [2000] 1 AC 455. That case is authority for
the proposition that in the case of joint or concurrent tortfeasors, where there is a settlement
in full and final satisfaction of the Claimant’s claim against one of them (irrespective of any
discount for litigation risk), this is a bar to a claim against any other such tortfeasor where it
is for the same damage. But the question will always arise whether the settlement has truly
been in full and final settlement of that claim for damages. See Clerk & Lindsell at
paragraph 4 – 18.
203.
Given my findings above, it is not strictly necessary to decide the point. But if I had to, I
would not have found that the earlier settlement with Mr McCann was a bar to this action for
the following brief reasons:
(1)
The claim against Mr McCann was for breach of contract not in tort;
(2)
While it might be said that he could have been found liable in tort I cannot see what
it would be given my findings above. He could not have conspired to induce himself
to break his contract, nor could he have been a conspirator or tortfeasor on any other
basis;
(3)
There has been no detailed consideration of the actual settlement agreement in the
action against Mr McCann at all. But on the face of it seems very unlikely that
£50,000 was actually taken as a measure of Mr McGill’s real loss which, if it was
anything, was of the order of £300,000, especially in the light of Mr McGill’s
explanation of the settlement at paragraph 127 above.
CONCLUSION
204.
Accordingly none of Mr McGill's various claims have been made out and this action must be
dismissed.
45