Sports Network Ltd v Calzaghe

The Court of Appeal should rarely interfere with primary findings of fact based on witness credibility and demeanour. It will do so only where the finding is plainly wrong or there is a compelling reason to intervene. A trial judge may accept parts of a witness’s evidence despite adverse findings elsewhere, provided the evidence is assessed cautiously and tested against documents and probabilities.

Under an agreement to share net profits, a party cannot deduct a loss arising from a separate arrangement for which it alone was responsible, rather than from the joint venture itself.

Sports Network Ltd renewed its application for permission to appeal after Sir Paul Kennedy had refused permission on the papers. Wyn Williams J had dismissed the company’s contractual claim against Joe Calzaghe and entered judgment for him on his counterclaim in an amount exceeding £1.8 million.

The proposed appeal challenged findings about an alleged oral agreement that Sports Network would promote Calzaghe’s future fights. It also challenged the refusal to deduct a $1 million loss arising from a ticket arrangement with Planet Hollywood when calculating the parties’ respective shares of profits from the Hopkins fight.

1. Primary findings of fact. Permission to appeal against the findings concerning the alleged future-promotions agreement was refused. The judge had seen and heard the witnesses, carefully assessed their credibility, and tested their evidence against documentary material and the probabilities. His rejection of Mr Abbey’s evidence was a primary finding based on demeanour, and the Court of Appeal had no proper basis to interfere.
2. Partial acceptance of evidence. The judge was entitled to treat Mr Williams’s evidence with caution because of proven misconduct, yet still accept the attendance note as accurate in material respects. Adverse findings against a witness in some matters do not require rejection of all that witness’s evidence. The judge had distinguished between the misconduct proved and the more serious allegation that the note had been deliberately fabricated.
3. Counterclaim and accounting. The parties’ agreement concerned division of the net profits of their joint venture. Promotion expenses could be deducted, but the Planet Hollywood ticket arrangement was not an expense of that character. The resulting loss arose from a separate transaction and, in any event, from Sports Network’s failure to sell the tickets. That loss could not be passed to Calzaghe by reducing the amount due to him.
4. Disposition. There was no real prospect of success and no compelling reason to trouble the Court of Appeal merely because substantial sums were involved. The application for permission to appeal was refused. Lord Justice Wall agreed with Lord Justice Ward’s reasons and described the application as hopeless.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Queen’s Bench Division: Wyn Williams J dismissed Sports Network’s claim and gave judgment for Calzaghe on his counterclaim on 16 March 2009.
• Permission on the papers: Sir Paul Kennedy refused permission to appeal.