Playup Interactive Entertainment (UK) Pty Ltd v Givemefootball Ltd

A commercial contract is construed objectively in its factual and commercial context, but the court cannot improve its language merely to make the bargain fairer. Sponsorship rights promising targeted marketing to opted-in recipients required recipients connected with the sponsored football awards, who had opted in through the relevant website and consented to marketing from a class including the sponsor. Bought-in data from unrelated sources did not satisfy those requirements. An obligation to send messages to mobile devices required messages to be sent to actual devices of qualifying recipients, although delivery itself need not be guaranteed. Substantial failure to provide the promised email and SMS benefits constituted repudiatory breach and entitled the innocent party to terminate. Damages could be assessed on a rough and ready basis where precise valuation would require disproportionate evidence.

The claimant sponsored the defendant’s Professional Footballers’ Association Fans Awards under a written sponsorship agreement. The agreement promised, among other benefits, monthly email programmes to at least one million opted-in recipients and bimonthly SMS programmes to at least 250,000 opted-in recipients. Disputes arose over the meaning of those promises, the use of data licensed from third parties, the validity of mobile numbers, termination, repayment and damages.

The claimant terminated after receiving programmes based substantially on bought-in data and after an SMS campaign reached fewer qualifying recipients than promised. The issues were whether the defendant had breached the agreement, whether termination was justified, and what financial relief followed.

1. Construction of the data rights. The Sponsorship Agreement, read objectively against its commercial background, promised benefits associated with the Fans Awards. The word “targeted” could not justify using an amorphous group of sports-interested persons unrelated to the Awards. The court applied the principles stated in ICS v West Bromwich BS [1998] 1 WLR 896, including the requirement to give effect to commercial purpose without rewriting the contract.
2. “Opted-in recipients” meant persons who had interacted with the Official Website, including an associated partner website route, and had consented to receive marketing. Under clause 5.1.12, the consent notification had to be provided to GMF, although consent to marketing from the Sponsor could operate through a class of associated entities. Bought-in data did not satisfy these requirements. The Legends campaign data satisfied the website requirement but did not satisfy the requirements concerning notification to GMF and consent to marketing from a class including PlayUp.
3. Paragraph 5.1.2 required messages to be sent to actual Mobile Devices of opted-in recipients. It did not require guaranteed delivery, but sending messages to invalid or fictitious numbers did not fulfil the contractual obligation.
4. At most 260,000 qualifying email recipients and 39,450 qualifying SMS recipients had been provided, against promises of one million and 250,000 respectively. The email shortfall was very significant. The combined failures substantially deprived PlayUp of a vital contractual benefit and constituted repudiatory breach at common law. The SMS failure alone would not have sufficed. The use of bought-in data also constituted material breaches incapable of remedy for the purposes of clause 7.1.1.
5. PlayUp was entitled to terminate. Under clause 8.2.5 it was entitled to repayment of £340,251.14 plus VAT. A rough and ready assessment of damages was appropriate because exact valuation would require complex and disproportionate expert evidence. The court awarded £53,000 for failure to supply the promised benefits and dismissed the claim for duplicated wasted SMS costs. GMF’s counterclaim for the unpaid instalment was dismissed.