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Construction – Contractual term – Claimant claiming breach of contract for marketing benefits by defendant – Whether breach occurring Playup Interactive Entertainment (UK) PTY Ltd v Givemefootball Ltd: QBD (Comm) (Mr Justice Walker): 28 July 2011 Edmund Cullen (instructed by Wiggin) for the claimant; Duncan McCall QC (instructed by Clarke Willmott) for the defendant. The proceedings concerned an action for breach of contract arising out of a sponsorship agreement. The claimant company operated an interactive gaming business providing mobile telephone and internet-based interactivity. Its games involved the player predicting the outcome of a sporting event or particular occurrences within the event. The defendant company was a joint venture between the Professional Footballers Association and an online media company, Sports New Media Ltd. A contract was entered into between the claimant and the defendant in February 2008 (the sponsorship agreement). Under the sponsorship agreement, the claimant was required to pay £1,034,000 in four tranches, and in return the defendant was required to provide the claimant with a range of marketing benefits. Among such benefits were certain data rights (data programme rights) which concerned, inter alia, monthly programmes of at least a million emails (email programme) and bi-monthly programmes of at least 250,000 short message service (SMS) messages (SMS programme). In November 2008, the claimant gave notice of termination of the sponsorship agreement on the basis that the defendant had breached its obligations in relation to the data programme rights. The claimant claimed certain repayments under clause 8.2.5 of the sponsorship agreement which provided that, in certain circumstances following a valid termination of the sponsorship agreement, the claimant would be entitled to a repayment from the defendant. It also claimed damages for breach of contract. The defendant counterclaimed for the remaining instalment due from the claimant in the sum of £342,000 plus VAT. The principal issues that fell to be determined were: (i) whether on the true construction of the meaning of ‘data programme rights’ there had been a breach of the sponsorship contract by the defendant; and (ii) whether the claimant had been entitled to terminate the sponsorship agreement and the consequences of any such termination. There was no dispute as to the legal principles regarding breach of contract (see  of the judgment). The court ruled: (1) Applying settled principles, the email programme had been delivered by the defendant to at most 260,000 qualifying recipients rather than the million promised, and the SMS programme to at most 39,450 qualifying SMS message recipients rather than the 250,000 promised in the sponsorship agreement. Accordingly, the defendant had failed to perform its obligations in relation to the data programme rights and there had been a breach of the sponsorship contract (see  of the judgment). (2) It was established law that the common law test for ability to terminate for a repudiatory breach of contract involved the application of the test of whether a failure in performance ‘substantially’ deprived the innocent party of what was bargained for or ‘frustrated’ the innocent party’s purpose in making the contract. On the facts, the combination of failure to provide both what the claimant had contracted for as regarded email recipients and what it had contracted for as regarded SMS message recipients pointed clearly to the conclusion that the common law test for repudiatory breach had been met. While the claimant had gained some benefits from the performance of the sponsorship agreement, it appeared that it had lost a major proportion of what it had been fully entitled to regard as a vital benefit. Accordingly, the claimant had been entitled to terminate the sponsorship agreement. In the circumstances, the claimant would be entitled to payment of £340,251.14 plus VAT under clause 8.2.5 of the sponsorship agreement and damages in the amount of £53,000 for failure of the defendant to supply what was promised. The counterclaim would be dismissed because the claimant had been entitled to terminate the sponsorship agreement.