New Zealand Cricket (Incorporation) v Neo Sports Broadcast PVT Ltd & Anor

Relief from a procedural stay should generally be granted where the applicant has given some explanation for the delay and the delay has caused no material impact on the efficient conduct of the litigation or prejudice to the opposing party.

On an application for summary judgment, the defendant must show a real prospect of successfully defending the claim. A contractual party in default cannot ordinarily rely on the other party’s exploratory efforts to mitigate its loss as a breach of exclusivity or good faith. Nor may a party invoke without-prejudice protection to conceal its own clear impropriety.

The claimant, the national governing body of cricket in New Zealand, granted Neo Sports exclusive broadcasting rights under a Media Rights Agreement. Nimbus guaranteed Neo Sports’ payment obligations. Neo Sports failed to pay an instalment due before an Indian cricket tour and failed to provide the required standby letter of credit.

The claimant terminated the Agreement after giving notice to remedy the defaults. The proceedings were served on the defendants, who failed to file a defence. The claim accordingly became stayed under Civil Procedure Rules 15.11. The claimant applied to lift the stay and for summary judgment for the unpaid instalment, contractual interest and damages to be assessed.

1. Stay lifted. Under Civil Procedure Rules 15.11(2), the claimant could apply to lift the stay. The applicable test was the relief-from-sanctions test. Applying Michael Wilson & Partners Ltd v Sinclair & Ors [2015] EWCA Civ 744, relief was appropriate because the claimant explained the delay, which was about one month, and it had no effect on the efficient conduct of the litigation or caused any prejudice.
2. Summary judgment test. Under Civil Procedure Rules Part 24, the question was whether the defendants had a real prospect of successfully defending the claim. The claimant’s evidence established an apparent absence of any such prospect. The defendants’ failure to file evidence or make submissions was itself sufficient, but the court nevertheless examined the arguments previously advanced by Neo Sports.
3. Exploratory discussions with possible alternative broadcasters did not breach Neo Sports’ exclusive media or advertising rights. They also could not reasonably amount to bad faith or dishonest or uncommercial dealing. A party in default, facing termination if it failed to remedy the breach, could not complain that the other party investigated mitigation of its potential loss.
4. In any event, the discussions had been proposed by Neo Sports itself. Its later attempt to rely on those discussions as justification for non-performance constituted bad faith. The without-prejudice character of the communications did not assist it. Applying Unilever plc v Procter & Gamble Co [2000] WLR 2436, a party could not use without-prejudice protection to conceal clear impropriety.
5. The guarantee required a demand before Nimbus’ obligations arose. The claimant had made an express demand, which Nimbus had not met. Nimbus therefore had no defence.
6. Orders. The stay was lifted. Summary judgment was entered for the claimant for the outstanding debt and contractual interest at 5 per cent above the Bank of England base rate, calculated at US$1,412,110 as at judgment. Judgment was also entered for damages to be assessed.