The Rugby Football Union v Viagogo Ltd.

A Norwich Pharmacal order may be granted where the applicant shows an arguable case of wrongdoing, a genuine intention to seek lawful redress, necessity for disclosure, and circumstances making relief appropriate. A person who enters premises without a subsisting licence is a trespasser, even if staff mistakenly admit that person on presentation of a ticket. The physical ticket and the permission to enter are distinct. Innocent facilitation of arguable wrongdoing can justify disclosure, and the availability of alternative enquiries will not defeat relief where those alternatives are impractical, costly or ineffective.

The Rugby Football Union sought information from Viagogo Ltd about persons who advertised or sold tickets for matches at Twickenham through Viagogo’s websites. RFU alleged that ticket sales or advertisements contrary to its ticket conditions could constitute breaches of contract, conversion, trespass and joint liability in tort. It accepted that Viagogo itself was not alleged to have committed wrongdoing, but claimed that Viagogo had become innocently mixed up in the alleged wrongdoing.

The application raised whether there was arguable wrongdoing, whether RFU genuinely intended to seek lawful redress, whether disclosure was necessary, and whether the court should exercise its discretion to grant relief.

1. Order granted. The court made the Norwich Pharmacal order sought, subject to submissions on the drafting.
2. Applicable test. The applicant had to establish an arguable case of wrongdoing, a genuine intention to seek lawful redress, the necessity of disclosure, and that the court should exercise its discretion in favour of relief. Viagogo accepted that, if arguable wrongdoing existed, it had innocently become mixed up in it.
3. Arguable wrongdoing. RFU’s ticket conditions arguably created contractual obligations restricting advertising, resale and transfer. The court was not deciding the ultimate contractual or tortious liability. It was sufficient that RFU had a good arguable case. A ticket and the permission it records were distinct. If the permission had expired or been revoked, presentation of the physical ticket did not create valid permission. The person entering was therefore arguably a trespasser, notwithstanding any mistaken admission by stadium staff.
4. The alleged conversion was also arguable. The paper ticket had little intrinsic financial value, but it functioned as a means of obtaining entry, comparable to a key. The law was not confined to protecting objects according to their material value. Joint liability based on common design or concerted action was likewise arguable.
5. Redress and necessity. RFU’s test purchases, sanctions against some distributors and proposed enforcement against sellers and other wrongdoers demonstrated a genuine intention to seek lawful redress. Redress need not consist only of legal proceedings. Disclosure was necessary because enquiries of clubs and distributors would be wide and costly, further test purchases would identify only small numbers of sellers, and information from competitors would not identify Viagogo users.
6. Discretion. Possible commercial harm to Viagogo and customer privacy did not outweigh the case for relief. The information sought could assist RFU in pursuing redress, and the absence of financial loss did not matter where RFU relied on the protection of legitimate sporting objectives.