CC-2023-000006 - [2025] EWHC 1439 (Comm)

The claim for disclosure against the Defendants was made in the context of litigation involving the Claimant arising from the death of the footballer, Emiliano Sala, on 21 January 2019. At the time of his death, Mr Sala was the subject of a high-profile transfer from Nantes FC in France, to Cardiff City Football Club (“CCFC”). On 12 May 2023, the Claimant brought a claim against Nantes FC in the Commercial Court of Nantes claiming damages of just over €120m. Those proceedings have yet to be determined or resolved.

In connection with that case, on 22 December 2023, the Claimant issued a Part 8 Claim against the First Defendant in this jurisdiction. It sought disclosure by the First Defendant of six categories of documents – principally concerning the role of the First Defendant in Mr Sala’s transfer – in the period 1 November 2018 to 28 February 2019 (“the target period”).

On 6 February 2024, agreement was reached between the Claimant and all three Defendants, subsequently embodied in a Tomlin Order dated 7 February 2024. Under the Tomlin Order, the Second and Third Defendants were joined as parties to the claim and each Defendant agreed that, by 4pm on 19 February 2024, s/he would disclose to the Claimant documents from the target period which fell within the identified six categories. All further proceedings in the claim were stayed save for the purposes of enforcing the terms of settlement.

It is common ground that no documents were provided by the Defendants pursuant to the Tomlin Order.

Following an application to the Court by the Claimant, HHJ Keyser KC was satisfied that the Defendants were in breach of the Tomlin Order and that its terms were properly enforceable within the Part 8 proceedings. Consequently, on 22 February 2024, he made an order, endorsed with a penal notice, requiring the Defendants to comply with the Tomlin Order (“the Disclosure Order”). The material parts of the Disclosure Order provided as follows:

“1.

The First Defendant do by 4pm on 26 February 2024 disclose to the Claimant the following documents and records for the period 1 November 2018 to 28 February 2019:

(a)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(b)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and Mark McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(c)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(d)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

(e)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and Mark McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

(f)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

2.

The Second Defendant do by 4pm on 26 February 2024 disclose to the Claimant the following documents and records for the period 1 November 2018 to 28 February 2019:

(a)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(b)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and Willie McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(c)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(d)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

(e)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and Willie McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

(f)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

3.

The Third Defendant do by 4pm on 26 February 2024, disclose to the Claimant the following documents and records for the period 1 November 2018 to 28 February 2019:

(a)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(b)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and Mark McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(c)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally.

(d)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

(e)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and Mark McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.

(f)

All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.”

The Defendants have never challenged the Disclosure Order, whether by appeal or otherwise.