BL-2023-NCL-000014 - [2025] EWHC 2074 (Ch)

Although various forms of financial enrichment were identified by Mr Stubbs, at the end of the day the form and quantity of financial enrichment relied upon for the purposes of founding a claimed remedy of disgorgement is that of the ticket money proceeds of the 2022 Festival, both of which Ticketline would not have retained (but been obliged to pay to SSD) had the 2017 agreement applied and there been no other considerations. I can therefore ignore potential arguments about whether Ticketline was enriched by retaining its reputation and whether there were other financial benefits obtained by Ticketline as a result of the 2022 Festival being saved by Tokyo (such as ownership, indirectly, of (if it was) a profitable and ongoing SSD business).

As regards the particular benefit in question, at the end of the day and on proper analysis, it seems to me that Tokyo’s argument is that by the sums it paid out (pursuant to a proposed agreement which did not materialise), a situation was avoided under which (a) the 2022 Festival was cancelled and (b) thereupon Ticketline would have had to refund the ticket price to ticketholders (or those that had purchased tickets). Instead, Ticketline was saved from having to make the refunds and was placed in a position where it could set off those sums against sums owed to it by SSD. For the reasons that I have already given, I consider that both proposition (a) and (b) are made out. I should add that, depending on the point at which one assumes that without the capital injection from Tokyo the festival would have had to be cancelled, it may be that some proceeds of ticket sales amount to enrichment of Ticketline not on the basis that they would have had to be refunded but on the basis they would not have been earned if the 2022 Festival had been cancelled earlier.

As regards the first point, Mr McGarry in his written closing submissions confirmed:

“12.

…the common ground is that by mid-July 2022, the Bingley Festival required a significant cashflow injection of anything towards £1 million in order to meet costs to completion.

13.

It is not in issue that the Claimant met these costs, and that the costs identified as paid within Annex 1 to the particulars of claim were costs associated with the Bingley Festival…”

As regards the second point, I have analysed earlier in this judgment why I consider that Ticketline was obliged to refund the costs of tickets. In effect that flowed from the relevant contractual relationships and the fact that Ticketline had not discharged its obligation to pay SSD ticket sale proceeds. Although ticket sale proceeds as received by Ticketline may have been paid over to SSD that was pursuant to a loan arrangement and, in SSD’s hands such monies were a loan not the proceeds of ticket sales. No set off was possible until settlement of any festival and in fact no purported set off had been made by the time of the deal that was done between Ticketline, SSD and Tokyo.

However, the rebate (50% of the booking fee) falls into a different category. The booking fee was not something that had to be refunded to ticket purchasers. It was, it seems to me, only the booking fee that was earned after the deal was done (or, possibly, after Tokyo started pumping money into the 2022 Festival) that Ticketline was enabled to earn (and retain or set off against loans to SSD) the booking fee (and the 50% of it otherwise at the end of the day payable to SSD) by the payments made by Tokyo. In other words, as regards the booking fee received prior to the deal with Tokyo, Ticketline had received the same and it was available (in due course) to set off the rebate part against any obligation to Ticketline by way of repayment of loans by SSD. The fact that the festival was not cancelled by reason of the injection of sums by Tokyo did not affect booking fees already received but simply allowed further sales (and booking fees) to be received that would not otherwise have been received.

A point was taken by Mr McGarry that the case had only been properly pleaded by way of the Reply. Mr Stubbs submitted that the claim was properly pleaded in the Particulars of Claim and that the Reply simply provided further particulars. As Mr McGarry confirmed, Ticketline had fought the case on the basis that this case (possibly among others) was being advanced. Had the point been taken earlier, and it was a good one, I would have permitted amendment of the Particulars of Claim. I do not consider therefore that I need spend time on an arid debate as to whether the claim was or was not adequately pleaded in the Particulars of Claim and whether a pleading in the Reply was inadequate.