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

In his witness statement, Mr Betesh described the “forward funding” which he said Ticketline had provided to SSD Music (or, as evidence showed, to IG Industries) as follows:

“8.

It is in effect a loan provided by the Defendant to the promoter. Repayment of the Loan is then repaid, not by fixed monthly payments but by a retention of the ticket sales income generated by the event. Accordingly, the amount paid by a customer in relation to a ticket purchase, is retained by us and set off as against the amount provided to the promotor by means of forward funding. Once the amount of ticket sales exceeds the amount provided by way of forward funding, the ticket sale proceeds are paid onto the promoter.” It is in effect a loa

I find that this account is inaccurate (and therefore misleading) in a number of respects.

First of all, the only contemporaneous document setting out any form of agreement between Ticketline and SSD provided for a set-off of only part of the ticket price, SSD’s share of the booking fee. As regards the face value of the ticket price that was to be retained by Ticketline (according to its contract with ticket purchaser in an escrow account) until the event was finalised or the advance by Ticketline to SSD cleared. In the latter event, then Ticketline was supposed to pay to SSD on a weekly basis the ticket price (less rebate) thereafter received.

Mr Betesh was confused and contradictory in his explanations of how forward funding operated in relation to Ticketline and SSD Music. At one point in his oral evidence he suggested that “forward funding” only started some years after 2017, but he also referred to the 2017 Agreement as encapsulating and demonstrating forward funding. He also suggested that in the early days Ticketline placed the proceeds of tickets sales into an escrow or client account but that later on it was paid into Ticketline’s office account and then used to make loans. However, by way of counter example, the reply to the request for further information asserted that “The Defendant did not use ticket sale proceeds to fund or facilitate any project. The Defendant provided future funding through realisation of its own profits”. For the purposes of the Claimants claim it does not seem to me to matter whether the loans it made to SSD Music made physically from the proceed sof ticket sales that Ticketline received or from other monies. The key question is whether Ticketline discharged its obligation to pay the proceeds of ticketsales to SSD Music as promoter.

There are indications that sums were credited against the overall debt owed to Ticketline by whichever company within the SSD group did so. However, what those credits represent as a matter of legal characterisation is unclear: eg. Whether they record set offs of sums owed by Ticketline, actual receipts of cash or what is wholly unexplained.

It is undoubtedly the case that a time came when Ticketline made almost constant advances to SSD. Although physically provided to SSD Music it is unclear in terms of accounting records or contemporaneous written agreement what the legal structure and applicable terms were in relation to such payments. There is no contemporaneous evidence of specific agreements relating to such advances nor as to the terms applying to such payments. The 2017 Agreement does not assist even if it was “carried over” to other companies in the SSD Group, and to other advances.

The schedule produced by Ticketline in answer to the CPR Part 18 request purports to show advances said to have been made by Ticketline to SSD. On its face the document suggests that the last time that there was any credit against this account, in terms of a sum received or credited as being received from SSD was on 14 December 2020 (a sum of £7,600.25). The credits immediately before that were £50,000 on 5 November 2020 and two credits of £50,0000 each on 6 and 9 October 2020. Going back in time, the next credit was £124,000 on 8 October 2019. The schedule also shows that sums were apparently being advanced by Ticketline every few weeks, until, in June 2022 funding ceased. In the first half of 2022 the Schedule shows sums being advanced by Ticketline as follows:

As I have said, by the end of June 2022 the net balance owed to Ticketline is shown on the Schedule as being £9,942,581.46. This would have covered lendings by Ticketline across the entirety of SSD’s events/festivals etc not just the 2022 Festival.

I make the following findings based on the limited evidence before me.

First, I find that by the end of July 2022, when Tokyo started injecting finds into SSD to ensure that the 2022 Festival went ahead, if not earlier, the advances made by Ticketline were treated as loans to IG Industries, the holding company of SSD Music. It may be, though I probably do not need to decide, that IG Industries was treated as on-lending the same sums to SSD Music, with an obligation on SSD to repay Ticketline. This analysis would entirely fit with the fact that Ticketline took a charge over IG Industries and took control (by way of shareholding) of IG Industries. It is also confirmed by the Heads of Terms. Mr Betesh did not in terms say that the Heads of Terms were incorrect in this respect.

There are also loans by Ticketline to IG Industries that were apparently self-standing when originally made and which may not, when made, have been repayable from ticket sales. One specific loan agreement was produced in evidence but at least two others were not. I suspect the following conclusion does not affect the relevant legal analysis in terms of unjust enrichment but I am prepared to assume that all such loans were at some point swept into the running account that I have referred to and that that was an agreement or understanding that all loans made by Ticketline to SSD would (so far as possible) be paid from ticket sales proceeds to which SSD would otherwise be entitled.

Secondly, I find that in physical terms, monies received from ticket sales of events promoted by SSD Music were, by January 2022 (if not as lot earlier) immediately used by Ticketline by being paid into its office (or business) account and that the majority if not all of such proceeds were paid on to IG Industries or some other relevant SSD company (probably SSD Music). This seems to fit with the contemporaneous emails from Mr Betesh, though as I have said, even they are something to be regarded with caution.

However, such physical payments gave rise to legal consequences and have to be analysed accordingly. Under the informal contractual arrangements in place the starting point was that SSD Music was entitled to the sale proceeds of the face value of the tickets. Leaving aside the question of whether there were any proprietary claims in this respect, there would have been a debt obligation owed by Ticketline to SSD Music (or the relevant promoter) in this respect, as well as an obligation to pay the “rebate”, one half of the booking fee to the promoter. As a matter of informal agreement, it was agreed that Ticketline could set-off, against the liability of SSD Music (or on my analysis and by 2022, IG Industries) to it, the obligation that it owed to the promoter, SSD Music, by way of rebate of the booking fee and the face value of the tickets.

However, it was not agreed that this could be done on receipt of the proceeds of ticket sales and nor was there any such set off on such receipt. As is clear for the CPR Part 18 Schedule, there was no reduction in indebtedness to Ticketline by way of credits (by way of set off) being applied to the account between the parties after December 2020 yet tickets were being sold for events, at the least, in 2022. The informal agreement was that set-off would be applied at the end of the festival when financial matters were being wound up or as it is put in the 2017 Agreement on “settlement” of the festival.

This analysis fits in not just with the CPR Part 18 Schedule but also with the 2017 Agreement (leaving aside rebates or the promotors 50% share of the booking fee). Under the 2017 Agreement the face value of tickets was to be retained by Ticketline (or put another way, the obligation to pay a sum equal to the face value of tickets to the promoter) did not fall due until either the debt to Ticketline had been cleared OR, at the end of a festival when the financial side of the festival, was wound up. The reasons for such a term are clear. First, on the financial winding up of the festival, a set-off would be available at law to Ticketline against sums owed to it either as a matter of law (assuming the debts owed were owed between the same persons) and/or of agreement (if IG Industries was required to repay advances to Ticketline). Secondly, it would have the consequence that Ticketline would also be reputationally protected because it would be in a position to pay any appropriate ticket refunds.

This analysis also fits in with the contemporaneous emails regarding negotiations between Mr Betesh and Mr Mellor. As set out in Option 1, a benefit to Ticketline of accepting the option was that it would retain (or not have to pay out to SSD Music, whether by refunds or otherwise the sums it owed in respect of the proceeds of) ticket sales up to 1 July 2022 but could instead set the same off against the debt SSD had run up with it. Leaving aside sums received from VAT Refunds which were to be paid to Ticketline.

“This gets you £500k ticket money +£475k VAT Refund +£200k potential future Vat returns.

These emails demonstrate that there had been no set-off against the debt owed to Ticketline of the sums owed in respect of ticket sales in relation to the 2022 Festival.

I consider that the main differences in the legal agreement reached informally between the parties by 2022 (compared with that in 2017) is that the delay in Ticketline being able to set off obligations against any debt owed to it was extended from the Ticket Price proceeds to include the rebate (being the promotor’s 50% share of the booking fee) and that there could be set off not just between parties who owed obligations inter se but of Ticketline’s obligation to pay the promotor the ticket price and rebate against the obligation of IG Industries to repay the advances that Ticketline had made.

If I am wrong about IG Industries being the entity to whom, in law, advances were made by Ticketline and they were as a matter of law made to SSD Music then the overall result is much the same and it does not affect the main issues between the parties.

The next issue is refunds.

In Ticketline’s answer to a request for further information it was asserted that refunds would only be facilitated if the Defendant received specific instruction from SSD to facilitate such refunds. This seems consistent with the relevant contemporaneous legal documents and Ticketline’s legal obligations to ticket purchasers. However, the answer then continued by asserting that “no such instruction was provided from SSD in relation to this Festival”. This was demonstrably false on the available email documentation. Refunds of ticket prices were made in relation to this Festival and on the basis of confirmation from SSD that such refunds should be made. Mr Betesh was unable to explain how it was that the position had been wrongly stated in the Defendant’s answer to the Claimant’s request for further information. He was also unable to explain why there had not been disclosure of accounting records that he said existed showing such refunds. He was also unable to explain why ledgers or other accounting documents had not been produced showing the accounting position as regards the proceeds of ticket sales in respect of the 2022 Festival. These are further examples of the unsatisfactory nature of Mr Betesh’s evidence and of Ticketline’s compliance with its duty, as ordered by the court, to give disclosure.

The only ledger account produced on this issue showed some refunds of over £1.23 million being made between 1 October 2017 and 31 January 2023. It is not possible from this ledger to tell which of these refunds related to the 2022 Festival rather than other events/festivals.

Mr Betesh in his witness statement suggested that the ticketing agent (in this case Ticketline) was not under an obligation to make a refund of ticket sales if an event is cancelled or re-arranged. A refund would only be made, he said, if two conditions were satisfied: first that the promoter of the event agreed to the refund and secondly that the promoter refunds the ticket sales to the ticketing agent of the monies paid across (to the promotor). Whilst I accept these propositions, the second is a little economical by way of explanation. The consequences of it is that if the promotor has not been paid across the ticket monies (or e.g. had the benefit of them, by the right to them being set off against some debt owed by the promoter to the ticketing agent) then the ticket agency retains the ticket proceeds and only the first condition stated by Mr Betesh needs to be met, the second not arising. The ticket agency holding the ticket proceeds in this scenario, it would have to refund the same to the ticket purchaser if the promoter agreed.

Indeed, this was the way that matters operated according to the terms of the 2017 agreement (in that Ticketline was to set off the rebate against the advance loan but to retain the other sale proceeds of ticket sales until settlement after the event). It is also consistent with the fact that ticket refunds were made well into 2022, although there were no specific sums paid over by SSD to meet such refunds (at least after December 2021).

The fact that Mr Betesh was aware of and indeed controlling refunds is confirmed by an email of his dated 8 April 2022 to Mr Davis where he asked Mr Davis to

“get the text changed on the website to say Ticketline will be in touch to offer face value refunds ro [sic] give you the opportunity to retain your ticket for next year”. loan provided by the Defendant to the pro

In cross-examination Mr Betesh said (as the email headings confirm) that this email related to the “This is Tomorrow” festival, but it negates any suggestion that as a generality refunds were not generally taking place and that Mr Betesh was not fully in control of that policy.nf

By letter dated 12 March 2025, Ward Hadaway LLP, solicitors for the Claimant, sought disclosure in relation to refunds of tickets for the 2022 Festival and other events. As Mr Betesh confirmed in cross-examination, absolutely nothing was disclosed in response to this letter.

In summary, there was a clear obligation upon Ticketline to refund if (a) SSD Music directed or agreed that there was to be a refund and (b) either Ticketline was put in funds OR Ticketline had retained the ticket proceeds in the sense of not having discharged its obligation to pay them over to SSD Music (which could include I suspect, a discharge by set off).

Mr Betesh’s repeated statements (contemporaneously and in evidence) that there was no obligation on Ticketline to make refunds because it had not retained the ticket sale proceeds and that that they had been paid to SSD Music missed the point. Physically the money that had come from ticket sales may well not have been physically retained and it may have been paid to SSD Music. However, the payment to SSD Music was not in discharge of the obligation to account for or pay over a sum equal to the ticket sale proceeds to SSD. It was a new legal transaction giving rise to a new obligation on SSD (or IG Industries) being an advance or loan of monies to SSD/IG Industries which that entity had to repay.

There is little doubt that it lay in SSD Music and Ticketline’s interests to refund monies if circumstances in which refunds arose under the terms and conditions of sale of tickets properly arose. There is clear evidence that in fact refunds were being constantly processed and paid over by Ticketline, without SSD having to pay over sums equal to such refunds to Ticketline, and this just demonstrates the general points that I make and the analysis and conclusion that I have reached. In short, there was a contingent liability upon Ticketline to refund ticket prices and that contingency was highly likely to arise.Furthermore, and in my judgment, in the event of cancellation of the 2022 Festival, the obligation to refund tickets, assuming SSD Music so authorised it, would have arisen before any ability of Ticketline to seek to set off the same against debts owed to it. That is because refunds would have arisen as part of the 2022 Festival process before taking net positions and working out settlement as between SSD Music and Ticketline. So far as necessary I would also find that the economic reality was that Ticketline would have had to refund tickets before seeking to set those proceeds off against debts owed to it by SSD Music (or IG Industries). This also flowed from its contract with ticket purchasers, the entirety of relevant obligations in this respect requiring it to have kept ticket monies in an escrow account (which in fact it seems not to have done).

I turn to the involvement of Tokyo and Mr Mellor.

As I have said it is now accepted that Tokyo paid out some £746,081.00 in directly or indirectly meeting various costs and expenses of the 2022 Festival which SSD Music would otherwise have had to meet but which it did not have the funding. Had Tokyo not provided finance at the very last minute as it did, the 2022 Festival would not have gone ahead and would have had to be cancelled.

It was also accepted in cross examination of Mr Betesh that in effect Tokyo funded the entirety of the 2022 Festival. Although Ticketline was lending SSD money up until 30 June 2022 it seems likely that some at least of the later payments were used to fund other events (such as a Diana Ross concert that took place in 2022).

It is also clear that Mr Mellor, and therefore Tokyo, proceeded on the basis that there was a deal as set out in Option 1 of the three options that he put forward. That basis of proceeding was shared by Mr Betesh, Ticketline and SSD and Steve Davis. Of course, that might be subject to further amendment by agreement and Mr Betesh, having agreed to Option 1, then constantly asked for variations to Option 1. He accepted for example that the Heads of Terms he caused to be produced did not in fact match Option 1. Nevertheless, it is perfectly clear that both Ticketline and Tokyo proceeded on the basis that a binding agreement would be produced giving effect to Option 1 (with any variations as further agreed). Mr Betesh accepted in terms Option 1 even though in his acceptance he asked whether Mr Mellor would vary Option 1. I am satisfied that the “deal” or agreement in principle was Option 1. I do not accept the submission that Option 1 was not agreed because Mr Betesh made counter suggestions after he had said that he accepted (and he thereby accepted) Option 1.

Although Mr Mellor had specified a binding head of terms as a pre-condition of the provision of funding, that did not materialise in the available time nor in due course. Despite Mr Mellor continuing to insist Option 1 was given effect to, Mr Betesh in effect refused to do so. Although the key terms of Option 1 were agreed, it was also agreed that this was in effect “subject to contract” so no binding agreement was ever entered into.

Mr McGarry submits that Mr Mellor and Tokyo essentially took the risk that a contract giving effect to Option 1 would not be entered into and that there is no room for a restitutionary remedy as a result. I shall have to consider this area of fact in more detail in the context of the requirements of a restitutionary remedy. For present purposes it is enough to say that I find that Mr Betesh was well aware that Mr Mellor through Tokyo was providing funding on the basis that a deal had been done on the terms of Option 1. The reason that heads of terms were not agreed before the funding commenced was because (a) of the immediate need for funding if the 2022 Festival was to be saved and (b) because of delays by Mr Betesh in actually producing first, any heads of terms and secondly, heads of terms that embodied Option 1.

The next issue that I turn to is the relationship between Ticketline (and particularly Mr Betesh) and SSD.

It was submitted by Mr McGarry that Ticketline did not take control of SSD. In particular, he pointed to contemporaneous emails on SSD Music operational matters to which Mr Betesh was not a party, as sender recipient or as person copied in. He also referred to an email sent by Mr Betesh to Steve Davis on 4 October 2023 in the course of a number of emails the gist of which is that Steve Davis was complaining about alleged non-performance of promises made by Mr Betesh and/or that he and other shareholders (in IG Industries) had been misled when they handed shares over to Mr Betesh/Ticketline. The overall context was Mr Davis encouraging Mr Betesh to give effect to the agreement in principle that he had reached with Mr Mellor in July 2022. The relevant email from Mr Betesh contains an assertion as follows:

“ I took control of the company because it was insolvent, I was owed a huge amount of money along with several other creditors. I had said that I needed to take control in order not to put the company into admin. You were given several weeks to raise money to avoid this happening, but were unsuccessful. You never actually gave me the control that you agreed to.

The offer was that if money was paid back from ticket sales and debt reached a manageable level the bulk of the shares would be returned.”

As regards the absence of Mr Betesh as a party to certain operational emails, it may be that Mr Betesh did not obtain the level of control that he either wanted and/or thought he was going to get at operational level. However, an absence of day-to-day control is not the same as “no control”. It may be quite common for a board of directors of a company not to be involved in day-to-day operational matters without it being said that they are otherwise than in control of the company and in respect of significant decisions. .

The email of 4 October 2023, when battle lines had already been drawn, demonstrates the general point that there was control, albeit not in his view the level of control that had been agreed. The terms of the email itself takes matters little further forward as they do not explain what that level of agreed control over detail was agreed (or being referred to).

In my judgment, Mr Betesh did have both legal (through an 85% shareholding in the parent company that wholly owned SSD Music) and de facto control over SSD Music so far as any deal with Mr Mellor was concerned. His actual involvement in, for example, setting website terms and conditions is one example of an actual exercise of control. The other is his dictating the terms of a document for the director of SSD Music to sign as a justification for SSD Music entering into and agreeing to Option 1. It is also demonstrated by the absence of negotiation between Mr Mellor and Mr Davis but instead the communications about the deal being between Mr Mellor and Mr Betesh (and/or those acting for him/Ticketline) and, for example, Mr Betesh’s production of heads of terms to which IG Industries and SSD Music were to be parties. There was no suggestion that in some way SSD Music and/or IG Industries were independent and there would need to be a separate negotiation with them before the heads could or would be executed by all parties.

In my judgment it is perfectly clear from the factual evidence that the consent of SSD Music and IG Industries to the deal done over Option 1 was in place.

Whether the benefits conferred on Ticketline gives rise to a claim in unjust enrichment is a matter that I will come onto. However, as a matter of factual evidence, and/or inferences to be drawn from that factual evidence, I am satisfied that it has been established that the benefits to Ticketline of the sums paid by Tokyo in connection with keeping the 2022 Festival running included (a) the ability to set off its obligation to pass to the organiser ticket monies against the debt owed to it (which, had Tokyo not paid the relevant sums, it would not have been able to do but would have had to used the ticket sale proceeds to refund customers; (b) the ability in like way to (a), to set off the sum it was obliged to pay SSD music as regards rebates (i.e. the 50% of the booking fee); (c) (as admitted by Mr Betesh) reputational damage flowing from a collapse of the festival (which might include reputational damage flowing directly from (a) and/or an insolvency of SSD Music and IG Industries (especially if that resulted in artistes and suppliers to those companies or either of them not being paid) (d) avoidance of formal insolvency of SSD Music and IG Industries and the retention of a major interest in those companies, such companies having an ongoing business and intellectual property rights and other assets of value.

In particular, I am satisfied on the balance of probabilities that without the payments made by Tokyo in connection with the 2022 Festival from July 2022 onwards the 2022 Festival would have been cancelled and that one consequence of that would have been that Ticketline would have had to find the money to refund ticketholders.

Finally, the claim in unjust enrichment has been limited to a claim equal to the sums that it is said that Ticketline benefitted from in terms of sale proceeds of ticket sales for the 2022 Festival, that benefit is said to be the face value of the tickets sold and the one half of the booking fee (the rebate) otherwise payable by Ticketline to SSD.

The sums realised by ticket sales for the 2022 Festival was pleaded in the Particulars of Claim as being £707,717 in respect of ticket sales. SSD’s share of the booking fee in respect of such sales was pleaded as being 50% of the 10% booking fee, being £35.385.85. This was based on a schedule provided by Ticketline and SSD forming annex 2 to the Particulars of Claim. The response in the Defence was that the ticket sale proceeds (being the entirety of the sale proceeds less any refunds) were £600,878. No disclosure or no adequate disclosure seems to have been given by the Defendant on this issue, Nevertheless, as I understand it, the Claimant is prepared, for reasons of practicality, to accept the figure put forward in the Defence. On the basis of ticket sales of £600,878, the booking fee would have been 10% or £60,087.80. Tokyo limits its claim as regards the booking fee received by Ticketline to the rebate (equal to 50% of the booking fee) to which on the face of the agreement between Ticketline and SSD, SSD would have been entitled and which, as a result of the 2022 Festival going ahead and refunds not being paid, Ticketline had the benefit of and was able to set off against any debt owed to it by SSD. I did not understand Ticketline to dispute the figures finally relied upon by Tokyo as arising as regards the ticket process and the booking fee (and the rebate).