McGill v The Sports and Entertainment Media Group & Ors

Where a claimant’s loss of a financial benefit depends on the hypothetical act of a third party, the claim is properly assessed as a loss of a chance. The claimant must prove that the lost chance was real or substantial and that the defendant’s wrong caused its loss. Its value is then assessed as a percentage and does not require proof that the third party would probably have acted favourably.

An earlier compromise bars a later claim for the same loss only where, construed in its factual and legal context, it fixed the full measure of the claimant’s loss. Comprehensive settlement language between the claimant and the contract-breaker does not, without clear language, necessarily satisfy a distinct tort claim against those alleged to have induced the breach.

A licensed football agent alleged that the respondents induced a professional footballer to breach an exclusive oral agency agreement and enabled another agency to complete the player’s transfer for a fee. The agreement did not comply with the Football Agents Regulations, which required a written representation contract.

HHJ Waksman QC dismissed all claims. He found that the agent and player had made a valid oral agreement and that the first respondent had induced its breach. However, he held that the agent had not proved, on the balance of probabilities, that the player would later have signed a compliant written agreement, and therefore had proved no loss.

The agent appealed against the dismissal of his claims against the SEM defendants. The central issue was whether the lost opportunity to obtain a compliant written agreement and agency fee had to be proved as more likely than not, or valued as a lost chance.

1. Appeal allowed in part. The judge erred by requiring proof that the player would have signed a compliant written representation agreement. The agent’s loss depended on the hypothetical act of a third party, namely the player. It was therefore a loss of a chance. Applying Allied Maples and Wellesley, the agent had to show a real or substantial chance, and that the inducement caused its loss. That threshold was comfortably met.

2. The Football Agents Regulations made a compliant written agreement necessary before an agency fee could become enforceable in the regulatory system. They did not have statutory force. The parties could therefore make a legally binding oral agreement between themselves, although the agent assumed the risk that it might not be regularised. The oral agreement was sufficiently certain, and the implied obligation to co-operate prevented the player from frustrating the exclusive agency.

3. The finding that the player would not probably have signed a written agreement was not clearly wrong. It remained relevant to valuation: the lost chance could not exceed 50%. The assessment required the trial judge’s evaluation of the evidence and was remitted to him, with discretion to determine the appropriate further procedure.

4. The settlement of the earlier contractual claim against the player did not bar this action. Read in context, the Tomlin order did not clearly show that the claimant had accepted the settlement as full satisfaction of his distinct tort claims against the alleged inducement defendants. The Jameson argument therefore failed.

5. The unlawful means conspiracy claim succeeded to the same extent as the inducement claim, making all the SEM defendants liable for the loss. The appeal concerning unjust enrichment failed. The pleading advanced restitution only as a remedy parasitic on other wrongs, not as an independent cause of action. In any event, the commission was paid by Bolton, so any enrichment of SEM was at Bolton’s expense rather than the claimant’s.

• Court of Appeal (Civil Division) — allowed the appeal in part in [2016] EWCA Civ 1063. The loss-of-chance and unlawful means conspiracy grounds succeeded. Assessment of damages was remitted to the trial judge.

• High Court, Queen’s Bench Division, Manchester Mercantile Court — HHJ Waksman QC dismissed the action, despite finding an oral agency agreement and inducement of its breach, because causation and loss had not been established on the approach then adopted.