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

On this aspect Mr McGarry relied heavily upon the Investment Trust Companies case. He submitted that the benefit in this case was indirect (and did not consist of property in which the claimant has or can trace an interest) and that it did not fall within any of the examples of a situation where the parties had not dealt directly with one another or with one another’s property (see paragraphs [46] and [47] of the Investment Trust Companies case) but where the difference from direct provision of a benefit by the claimant to the defendant could be said to be “more apparent than real”, such as agency, assignment or sham (see paragraph [48]) and co-ordinated transactions (see paragraph [61]-[66].

In my judgment, the answer to Mr McGarry’s point is that this is a case where Ticketline and Tokyo (and as I have held SSD) reached a deal which was understood on all sides to be directed precisely at (a) avoiding Ticketline having to make refunds of ticket sale proceeds and (b) thereby enabling it to be allowed to retain (as the deal provided for) the proceeds of ticket sales up to 1 July 2022; it being agreed that Tokyo would receive the proceeds of ticket sales from 1 July 2022 onwards.

In this case the parties did deal directly with one another and negotiated that Tokyo should provide funding for SSD specifically so that SSD did not have to cancel the 2022 Festival and Ticketline could retain the ticket proceeds (in effect equivalent to a set off against the debt owed by SSD) and gift part of them to Tokyo. This was not an incidental consequence but a directly intended consequence that materialised (except that Ticketline retained all of the ticket proceeds) as a result of Tokyo paying the monies out that it did. As such it seems to me that the benefit was direct (or that difference from the direct provision of the benefit is more apparent than real). The benefit was not an incidental consequence of the funding of the 2022 Festival by Tokyo, it was the main (or one of the main) purposes of the deal. Further, it did not form a separate transaction, it flowed immediately from the laying out of funds by Tokyo.

Accordingly, I am satisfied that in this case the identified benefit was as a result of:

“the provision of something for the benefit of some other person with no intention of making a gift, that the defendant should have received some form of enrichment, and that the enrichment has come about because of the loss.”

Lord Clyde in the Banque Financiere case ([1999] 1 AC 221 at 237) discussed at paragraph [44] of the Investment Trust Companies case.