Case No: A3/2010/2175

Neutral Citation Number: [2011] EWCA Civ 450

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
MERCANTILE COURT
HIS HONOUR JUDGE HEGARTY QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 7th February 2011

Before:

LORD JUSTICE WARD

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Between:
Proactive Sports Man Limited Appellant
- and -
Rooney & Ors Respondents
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(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr Tom Weisselberg (instructed by Herbert Reeves & Co Solicitors) appeared

on behalf of the Appellant.

Mr Paul Chaisty QC (instructed by Hill Dickinson) appeared on behalf of the

Respondents.
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Judgment
 ( As Approved )

Crown Copyright ©Lord Justice Ward:

1. This is a renewed application for permission to appeal the orders made by

HHJ Hegarty QC on 15 July. The claim made by the applicant is for payment
of monies due under the Image Rights Representation Agreement made by the
claimant with companies formed to look after the interests of Mr and Mrs
Wayne Rooney.

2. There are six grounds of appeal. Ground 1 depends upon the proper
construction to be placed on clause 6.2 of this agreement, which provides for
payment by the defendants to the claimant of:
"a commission calculated on the
percentage of all sums payable to the
client as follows 20% to the gross sum
payable under any contract or
arrangements for the promotion,
endorsement or advertisement of the
client and/or the exportation of the
intellectual property and/or any
products, goods or services to which
the client is a party."
As I understand it, a stream of income has been and continues to
be earned from these professions. The claimant's claim is that as
monies become payable they have a legitimate claim for their
commission.

3. Much depends on the construction of the word "payable" in contradistinction

to which words which could have meant or read sums which have been paid to
the client. That of itself does seem to be arguable. Moreover, the construction
accepted by the judge may be said to make little economic sense. Assume that
the applicant, who is bound by clause 3 diligently to serve his client and to use
his best endeavours to negotiate contracts on his behalf, fulfils that duty by
concluding a lucrative deal on Monday. If the contract is terminated on
Tuesday, does the client pay nothing for the service rendered? It seems to me to
be arguable that, although the applicant would have ceased to provide any
services to the client after determination of the agreement, the commission is
nonetheless payable for the service we did provide to secure the particular
contract, nor am I convinced that payments to be made under clause 8 in the
event of the client's terminating the agreement preclude the applicant from
recovering what would otherwise be due and owing to him.
4. As to ground 2, if the agreement is enforceable as unreasonable restraint of
trade, it does seem to me to be arguable as per Instone v Schroeder [1974] 1 All
ER 171 that the court should still permit the enforcement of the accrued vested
rights and hold that the agreement is only unenforceable insofar as it is
unformed.

5. Ground 3 relates to unlawful restraint of trade. The public interest is in the

freedom to trade. Mr Rooney's trade is that of a professional footballer. In
carrying out that trade he employs an agent to arrange the terms of his
contracts, and that contract is regulated, as I understand it, by the Football
Association. It is distinct from any commercial contract exploiting his image
rights. It seems to me therefore arguable that although the Image Rights
Representation Agreement restricts his powers to exploit his image, which he
enjoys as a footballer, it does not interfere with his ability to ply his trade as
such. The recent furore over Mr Rooney's possible move to Manchester City
may demonstrate this distinction.

6. Ground 4: contractual estoppels. I confess I am much less impressed by this

argument. If the contract is in fact an unreasonable restraint of trade, the public
interest against enforcing it should extend to and cover the contract attempt to
give binding force to the parties, stipulating as they did in clause 24 that they
are happy to treat the restraint as reasonable. Such a provision as clause 24
would seem to me to emasculate the court's power to declare unenforceable that
which in the public interest should be rendered unenforceable. However, since
in the first place the argument is about the scope of the public interest, and
secondly the limited time this argument will take, both lead me to permit this
point to be taken, unless on reflection (which I urge) the applicant abandons it.
If the applicant is going to win it will win on ground 3 without the need for
ground 4, but I am not going to shut them out.

7. Ground 5: quantum meruit. Although, like many, I stand amazed at the

money made by footballers and those who represent them and recoil at the
notion that the fortunes they earn can properly be described as reasonable
remuneration, the evidence that a commission of 20% is the going rate of
remuneration seems to me to give rise to an argument that 20% is a powerful
indicator of reasonableness. There is, on the other hand, an equally powerful
argument that some regard must be had to the fact that the applicant is saved
the expense of continuing representation and that one should accordingly look
to their net loss in order truly to value the extent to which the defendants have
been unjustly enriched.
8. In the light of the judge's own reluctance to accede to the applicant's case, I
regard it as sufficient to decide that there is a prospect of success which can
hardly be described as fanciful.

9. The sixth ground relates to the fourth defendant, Speed 9848 Ltd. Similar
arguments prevail, and the cases are so interlinked that they stand or fall
together.

10. Consequently I will give permission to appeal on all grounds, recognising

as I do that Sir Richard Buxton's views may ultimately prevail; nonetheless
each of these arguments has a real prospect of success as that term has to be
understood. The mere fact that this is a claim for millions of pounds is almost
by itself a compelling reason to give permission to appeal. It took the judge no
less than 195 pages to dispose of it, and that suggests to me there must be
something worth looking at for the Court of Appeal. It is certainly a much more
worthy case for taking up the court's time than some of the other nonsense
which comes before us, as will be apparent to anybody who wishes to stay to
listen to the next ludicrous boundary dispute that follows in my list.
Order: Application allowed