Miss Elizabeth Slade Q.C. sitting as a Deputy High Court Judge:
- In these proceedings the Claimant, John Sadler, claims damages for breach of an alleged contract with the Defendant, George Reynolds, for John Sadler to ghost-write Mr Reynolds' autobiography. John Sadler also claims damages for breach of confidence for matters related to the proposed book.
- Mr Duodu appeared for Mr Sadler and Mr Reynolds, who is an experienced litigant, appeared in person having ceased to have legal representation on 30th August 2004. John Sadler, his wife, Jo Sadler and Alan Samson, who at the material time was an Editorial Director of Time Warner Books UK ('Time Warner') gave evidence. Notwithstanding an order made on 8th April 2004 that witness statements be served by 13th August 2004, Mr Reynolds failed to do so. Although he had not served a witness statement, Mr Duodu wisely did not object to Mr Reynolds giving evidence.
The Issues
- The following issues arise:
i) Did the parties enter into a contract for John Sadler to ghost-write George Reynolds' autobiography? 1fso
ii) Was George Reynolds in breach of contract?
iii) What is the measure of damages for the breach?
iv) Was a duty of confidence in relation to the title of the autobiography and the idea for the first chapter owed independently of any contract to write the autobiography?
The evidence
- John Sadler is the former chief sports reporter of the Sun newspaper having worked as a journalist for over 30 years. He has also ghost written autobiographies of Brian Clough and Vinnie Jones. At the material time, George Reynolds was Chairman of Darlington Football Club. He was a successful businessman and had amassed a considerable fortune of about £300 million. He has a colourful past: his is, as described by John Sadler, a real rags to riches story. George Reynolds had been brought up in an orphanage and served sentences of imprisonment. He learned to read and write in prison. According to his evidence he is dyslexic and has considerable difficulty in writing, remembering numbers - for example he said that he cannot remember his mobile telephone number - or dates, save by reference to events.
- It is common ground that the parties first met in May 2000 when John Sadler interviewed George Reynolds for a series of articles in the Sun newspaper. John Sadler and George Reynolds got on very well. When John Sadler conducted the first interview he realised that George Reynolds' life story would make an interesting autobiography and raised the subject of ghost writing the autobiography at their first meeting. Both parties agree that George Reynolds told John Sadler that others - Mr Reynolds said four or five - including a journalist, Margie McIntyre, had expressed an interest in writing such a book. Mr Reynolds said in evidence that he was interested in John Sadler, amongst others, writing the book.
- In September 2000 John Sadler interviewed George Reynolds on a second occasion in connection with the newspaper articles. John Sadler again brought up the subject of the autobiography. There is a conflict of evidence as to Mr Reynolds' response. John Sadler in his written evidence stated at paragraph 3:
'This time he told me that he wanted me to write his autobiography. I recall clearly what he said. It was something along the lines of 'I want you to do the book'. 'I like you and the way you operate."
He said in oral evidence that on the second occasion he met Mr Reynolds he was happy that George Reynolds had agreed that he should do his book. George Reynolds denied in cross-examination that he had agreed that John Sadler should write his book. He said that he would have let John Sadler do the book 'provided the goal posts hadn't changed.' When pressed as to whether he had said that he wanted John Sadler to do the book, George Reynolds replied
'To be quite honest I can't remember exactly what was said but he was quite aware that other people wanted to do that book'.
When asked whether he might have said that he wanted John Sadler to do the book he replied
'Probably yes, might have, might not.'
When he was asked whether he remembered shaking hands with John Sadler on the book he replied
'No. We were in discussions about the book. Realistically I shake hands with everybody.'
- On 2ih May 2001 a third meeting took place between the two men. John Sadler met George Reynolds on his own to interview him for an article in the Sun. Mrs Jo Sadler came up to Darlington on that occasion. What was said as to the reason for her being there is the subject of dispute. John Sadler said that at their meeting he mentioned to George Reynolds that his wife was in Darlington, that she would be helping Mr Sadler with the autobiography and suggested that Mr Reynolds meet her. Mr Reynolds says that when making arrangements on the telephone for his visit, Mr Sadler mentioned that his wife was coming up and that it was prearranged that John Sadler and his wife would go out to lunch with George Reynolds and his wife. He denied that the reason Jo Sadler came to meet him was because she would be assisting Mr Sadler with the autobiography. What is not in dispute is that the two couples went out to lunch together and that the book was discussed. In cross-examination Mr Reynolds said that at lunch John Sadler told him that Jo would help him in writing the book and that' J 0 does most of the work on my books'.
- After lunch George Reynolds and his wife took Mr and Mrs Sadler to Mr Reynolds' mansion, Witton Hall, and gave them a tour. Susan Reynolds pointed out what was referred to as a tromp l'oeil of an autobiography of George Reynolds with the title 'From Con to Pro' on the spine, which was said to be Susan Reynolds' preferred title. George Reynolds said in evidence that this was next to a tromp l'oeil of Archbold (the well-known criminal law text book.).
- What happened next is the subject of some dispute. Mr and Mrs Sadler said in evidence that they went back with Mr Reynolds to his office where their car had been parked. They all went into the office. John Sadler stated in paragraph 4:
'It was also at the office that he made clear that we had an agreement to do the book. He asked me how much money I had made out of Brian Clough's autobiography, and when I told him he replied that he would make me 'a million pounds'. He then voluntarily repeated that all the proceeds from the book would be divided between us 50-50 ie equally. We shook hands and he told me that we had a deal and that he never went back on his word. Jo, my wife, was present throughout this exchange.
5. After shaking hands, we discussed the next steps towards preparing the book. I told the Defendant that I would need to prepare a synopsis, in accordance with his direction and approval of course. He agreed saying 'That's your field - you get on with it'. I explained the synopsis would form a skeleton of the book with some of the memorable anecdotes and features which I would obtain through a taped interview with him, for the purpose of interesting publishers. The Defendant agreed to this proposal and we agreed that I would meet up with him again in the next few weeks to do the synopsis interview. The Defendant went on to mention that when we came to write the book proper he would fly us (Jo and I, himself and Susan) over to his villa in Marbella for a couple of weeks. We could get on with the work of preparing the book and, as he put it, 'the girls can go shopping'. He went on to assure me he was prepared to provide me with all the necessary access to information required for me to prepare the synopsis. I was to then use the synopsis to obtain a reputable publisher and negotiate suitable terms for a publishing agreement. The Defendant admitted he knew nothing about publishing so he told me to 'get on with it'. '
Mrs Sadler gave evidence which corroborated this evidence of her husband. John Sadler said in evidence that he received the following proportion of the proceeds of his ghost written autobiographies: the first Brian Clough book, 30%, Vinnie Jones, 20% or 25% and the second Brian Clough book, 33 1/3%. He said that his agreements with these autobiographical subjects were not recorded in writing.
- Mr Reynolds at first denied that any discussion with Mr Sadler took place at his office on 27th May 2001. He then said that he could not remember going back to the office and shaking hands. He said that 'we had an agreement provided the goalposts hadn't been moved'. As for the agreement to split the proceeds 50/50 he said
'That came on the table after I had refused to do the book with him.'
When he was asked in cross examination whether he would ever have made an agreement to divide the proceeds 50/50 he replied 'probably yes'. He also said that 'if the book went ahead I would have done it in Marbella'. He said that he suggested going to Marbella to Mr Sadler and that he would have suggested the same to Patrick Lavelle, the author who in the event wrote his autobiography.
- George Reynolds said that on 27th May 2001 probably Susan his wife gave John Sadler her handwritten notes on his life story headed 'Part of the life history of George Reynolds, con to pro' to assist in preparation of the synopsis.
- It is not in dispute that John Sadler met George Reynolds sometime between June and August 2001 for the purpose of preparing the synopsis. John Sadler made a recording of the interview for use in writing the synopsis. An extract from the tape was played in court in which John Sadler can be heard saying 'bearing in mind when we do the book we have to do everything'. John Sadler states that he sent George Reynolds a draft copy of the synopsis sometime between August and September 2001. In cross examination, Mr Reynolds said that he did not know whether he received the synopsis. He observed 'Paper came in in droves'.
- John Sadler alleges that he came up with the idea for the title 'Cracked It!' for the book and for the opening chapter. George Reynolds had told him that he had visited in his helicopter the orphanage where he spent part of his childhood. John Sadler gave evidence that it was his idea to use this in the opening chapter of the book. George Reynolds agreed in cross-examination that it was John Sadler's idea to use the helicopter visit to open the book. However he denied that the idea for the title 'Cracked It!' was Mr Sadler's.
- After preparing the synopsis, John Sadler sought a publisher for the book. He approached a number of publishers between August and October 2001 without success. On 7th January 2002 John Sadler met Alan Samson, then of Little Brown publishers, at a press conference. John Sadler told Alan Samson of the proposal to ghost-write an autobiography of George Reynolds and, after being sent the synopsis, Alan Samson said that the publishers (now part of Time Warner Books UK) were willing to make an offer for the book. The initial offer was for an advance of £60,000 for the rights to publish the autobiography on a world rights basis. Alan Samson confirmed the offer by fax dated 6th February 2002. John Sadler said in evidence that he posted the fax to George Reynolds and then discussed the offer with him on the telephone. He stated in evidence that George Reynolds was pleased with the offer but John Sadler thought the publisher may increase it. After contacting Alan Samson the offer was increased to £70,000.
- George Reynolds denies knowing of the size of the proposed advance, either from John Sadler or from the draft contract which the publisher later sent to him for signature. He said in cross examination that he made it quite clear (to Mr Sadler) before the agreement (from the publishers) was sent to him, which was on 2nd April 2002, that he was not going through with it. Mr Sadler denied that he was informed by Mr Reynolds of his unwillingness to proceed with Mr Sadler writing his autobiography until October 2002.
- Enclosed with a letter dated 2nd April 2002, Time Warner sent George Reynolds three copies of the proposed publishing contract, entitled 'Memorandum of Agreement', for signature. Time Warner sent John Sadler a similar document. The documents sent to Mr Sadler and to Mr Reynolds contained the following clause;
'The Publisher will pay to [the Writer-Mr Sadler (clause 6) or the Author-Mr Reynolds (clause 3)] on account and in advance of all sums that may become payable to the [Writer/Author] under this Agreement the sum of (£35,000) thirty five thousand pounds (the 'Advance') payable as follows:
(£15,000) fifteen thousand pounds on signature of this Agreement by both parties
(£10,000) ten thousand pounds on delivery and acceptance of the Work
(£10,000) ten thousand pounds on first publication of the Work in the United Kingdom by the Publisher'
The proposed contract contained provisions for the calculation of royalties. Alan Samson gave evidence as to how the advance was calculated. He said that the publisher estimated that 20,000 hardbacks would be sold at £14.99 a copy and 30,000 paperbacks at £6.99 per copy. Sales would be on target if these figures were achieved. He said that a conservative estimate would be 15,000 hardback sales.
- Mr Reynolds did not sign and return the publishing contract. John Sadler signed and returned to Time Warner the corresponding contract which was sent to him. George Reynolds suggested to Alan Samson in cross-examination that he said to Mr Samson that he was not doing the book with John Sadler. Mr Samson denied that this was said to him. He said that he was only aware of Mr Reynolds' failure to sign the contract and did not remember a conversation with him despite trying to speak to Mr Reynolds on the telephone. The first Mr Samson was aware of the book not going ahead was when John Sadler telephoned him and so informed him.
- During the course of the hearing, George Reynolds produced a letter to him from Alan Samson dated 16th September 2002 in which Mr Samson states that the reason for writing was that George Reynolds had not sent the contract back and that John (Sadler) was uncertain about the writing schedule.
- John Sadler stated that he was contacted by a lady at Time Warner and was told that George Reynolds had not returned his contract. He was surprised by this and tried to contact him. When he succeeded in speaking to him, Mr Reynolds said he was extremely busy with his business and football commitments. Mr Sadler finally received a response from George Reynolds on or around 14th to 16th October 2002. When John Sadler pressed George Reynolds for an answer regarding the publishing agreement he finally said to him 'no you won't be doing the book'. Mr Sadler stated that Mr Reynolds told him that Susan, Mr Reynolds' wife, was going to write it. After another telephone conversation John Sadler wrote to George Reynolds on 16th October 2002 as follows:
'You know as well as I that we had a contract. You said as much on a number of occasions when you assured me, verbally, that we had a deal. You shook hands on it and assured me your word was your bond, that 'when I shake hands on a deal I don't go back on it.'
On 8th November 2002 John Sadler wrote again to Mr Reynolds:
'I repeat that I am still eager to work with you on the autobiography and I would have no objection to Susan's involvement. Indeed, her input would be extremely valuable and I see no reason why her name, too, should not appear on the title page.'
- As stated above, the evidence is that John Sadler then contacted Alan Samson to tell him that George Reynolds was not going ahead with the book. On 29th November 2002 Alan Samson wrote to George Reynolds
'I understand from John Sadler that you will not be pursuing the writing of your autobiography in tandem with him . ........... . May I assume that the agreement we sent to you for consideration is now defunct?'
- John Sadler stated that sometime during the second or third week of April 2003 he heard George Reynolds being interviewed on the radio talking about his autobiography, 'Cracked It!' He discovered that the book was written with Patrick Lavelle. The book opens with Mr Reynolds' helicopter visit to the orphanage. In the course of these proceedings a publishing agreement entered into between George Reynolds, Patrick Lavelle and John Blake Publishing Ltd has been disclosed by George Reynolds. The agreement is dated 10th July 2002 and contains a provision in Clause 5(i) that
'All advances and royalties will be paid 50% to Mr Reynolds and 50% to Mr Lavelle by the Publisher. .. '
Clause 7( d) provided:
"The Authors will not write or publish or cause or permit the publication of any other work on the same subject as the Work or do any other act which would adversely affect the sales of the Books or other exploitation of the Work without the consent of the Publisher"
George Reynolds stated that he has received only £1,000 from the publication of the book.
- As to the royalties which were reasonably anticipated had George Reynolds co operated with John Sadler in writing the book which was to be published by Time Warner, the evidence of Alan Samson was that royalties on anticipated sales would have produced the advance proposed in the publishing agreement.
- No additional evidence was relied upon in support of any claim for loss caused by the alleged breaches of confidence in respect of the book title and the idea for the first chapter.
- In relation to damages claimed for loss of reputation, John Sadler stated that he has lost the 0ppOliunity to enhance his reputation and prestige as a writer by being associated with another successful autobiography and that George Reynolds' actions may have damaged his reputation with Time Warner Books and Alan Samson.
The contentions of the parties
- Mr Duodu on behalf of John Sadler contends that by an oral contract concluded in May 2001 the parties agreed that George Reynolds would co-operate in the writing of his autobiography and that John Sadler would obtain a publishing agreement and would write the book. He contends that it was an express term of the agreement that all earnings from the book under any publishing agreement would be divided equally on a 50-50 basis between the Mr Sadler and Mr Reynolds. Various implied terms are asserted including the following:
'5.1 The parties would retain mutual trust and confidence and act in good faith pursuant to the completion of the book;
5.2 Information and/or documents disclosed by the Defendant to the Claimant would be on an exclusive basis with a view to the book as published disclosing exclusive information about the Defendant.
5.4 All original ideas and/or text generated by either party, including, but not limited to, the contents, format, layout, organisation and title of the book were to be treated as confidential between the parties until such time as the book had been published or, in the event that the book was not published, until further agreement between the parties.'
It is contended on behalf of John Sadler that by entering into an agreement with Patrick Lavelle in 2002 to write his autobiography, George Reynolds was in breach of contract. It is alleged that the breach has caused loss and damage constituted by loss of the advance and royalties, by loss of opportunity to enhance his reputation and by damage to his reputation. A pleaded alternative quantum meruit claim, whilst not expressly abandoned, was not advanced at the hearing.
- As for the measure of damages for breach of contract, Mr Duodu realistically recognises in the light of evidence given by Alan Samson that the advance was based on anticipated royalties did not press too hard for damages in respect for the loss of royalties in addition to the loss of the advance of £35,000.
- The sum of £1,000 is claimed in respect of the loss of opportunity to enhance Mr Sadler's reputation by writing the autobiography of George Reynolds.
- Mr Duodu accepted that Alan Samson did not give evidence that the reputation of ]01111 Sadler had been damaged by his not writing the George Reynolds autobiography.
- It was contended on behalf of John Sadler that George Reynolds was in breach of a duty of confidence by passing to Patrick Lavelle what he contended were his ideas for the title of the book 'Cracked It!' and for the opening chapter, visiting in his helicopter in later life the orphanage where he had spent part of his childhood. Mr Duodu could not explain to me how the claims for breach of confidence could be pursued independently of the claim for breach of contract.
- In his pleaded Defence, it was contended on behalf of George Reynolds that he did not, at any time, agree that Jol111 Sadler should be involved in writing his autobiography. Further, his pleaded Defence was that interviews with John Sadler took place between June 2001 and September 2002 but that, as far as he was aware, these were for the purpose of newspaper articles that John Sadler intended to write. In the Defence, George Reynolds alleged that neither the title 'Cracked It!' nor the proposal for the opening chapter were devised by John Sadler.
- When Mr Duodu put his written Defence to George Reynolds he replied:
'I couldn't have been bothered to deal with it.
I hadn't seen the Defence. It is the first time I have ever read this.'
When it was pointed out to him that he had signed a statement of truth in the Defence, George Reynolds replied:
'This is the first time I [have] read it properly.'
Although his position changed from time to time during the course of the hearing, when asked about whether an agreement had been reached with John Sadler for the writing of his autobiography George Reynolds said on several occasions that 'we had an agreement but I wasn't happy about the goalposts being changed'. When pressed by Mr Duodu as to what he meant by stating that the goalposts had been changed, George Reynolds referred to John Sadler moving to France and his perception that it 'would be very difficult to conduct this from France'.
- The variants on the predominant position of George Reynolds on the existence of a contract with John Sadler were 'I can't see where there was a verbal agreement', 'What [you are] saying is that on a particular date we came to an agreement. We did not', 'We shook hands on a deal provided everything was kosher and above board' 'Realistically I shake hands with everybody', 'We shook hands on the deal.. not [a contract] until signed on the bottom', 'A verbal contract is new to me'.
- As to the allegation that he and John Sadler agreed to divide the proceeds from the book 50-50, George Reynolds contended that he would probably have agreed to this division but a mention of the apportionment of proceeds only arose after he had refused to proceed with the book. George Reynolds alleged that he informed John Sadler before the Time Warner agreement was produced that he would not proceed with him as the writer of his autobiography.
- As to the allegations regarding confidential information, George Reynolds agreed that the idea of using the helicopter visit to the orphanage in the first chapter was John Sadler's although it was he who told Mr Sadler about the visit. George Reynolds denied that the idea for the title, 'Cracked It!' was Mr Sadler's.
Findings of fact
- On his own admission Mr Reynolds did not have a clear recollection of what was said at the meetings with John Sadler. Frequently, when giving his evidence, he gave the impression that at the time he had many other important business matters to attend to and that he was inundated with many documents. On occasion he would attribute his lack of recollection of dates and documents to his dyslexia. John Sadler and his witnesses gave clear and consistent evidence.
- On the evidence before me I make the following material findings of fact.
- John Sadler gave evidence that at their second meeting in September 2000, George Reynolds agreed that he should write his autobiography. As to what he said of the writing of the autobiography at that meeting, George Reynolds did not deny that he had agreed that John Sadler should write his book. The effect of his evidence on the point was that he could not recall exactly what was said but that he would have let John Sadler do the book 'provided the goal posts hadn't changed'.
- George Reynolds had mentioned to John Sadler that he had discussed writing his autobiography with Margie McIntyre. It may well be, as he stated in evidence, that George Reynolds subsequently preferred the approach of Patrick Lavelle who was familiar with the North East and was prepared to interview people in that region for the purpose of writing the book. John Sadler was going to write his book based solely on interviews with George Reynolds. Further, it may well be that George Reynolds was concerned when John Sadler later went to live in France whether the geographical distance would make it difficult for him to write an autobiography of someone so rooted in the North East as George Reynolds. Although he gave no clear answer as to what he meant by 'the goal posts had changed' it may be that George Reynolds was referring to Mr Sadler's going to live in France. I also accept the evidence of George Reynolds that other potential writers of his autobiography, Patrick Lavelle and Margie McIntyre prepared written synopses for the autobiography.
- I find that George Reynolds had been in discussion with Margie McIntyre before his discussions with John Sadler and that sometime before he entered into an agreement with him in July 2002 he conducted discussions with Patrick Lavelle about writing his autobiography. However, whatever doubts George Reynolds subsequently may have had about Mr Sadler's proposed method of writing the autobiography or about the perceived difficulty caused by his going to live in France, I find on the evidence that when John Sadler and George Reynolds met for the second time in September 2000, George Reynolds told John Sadler that he wanted him to write his autobiography and that an agreement was reached between the two men that he should do so.
- John Sadler gave evidence that on 2ih May 2001 at a meeting at his office in the presence of his wife Jo Sadler, George Reynolds volunteered that the proceeds of the autobiography would be split 50/50. They shook hands and Mr Reynolds said that he never went back on a deal. As for the agreement to split the proceeds of the book 50/50, for his previous books, John Sadler had reached agreements for the division of proceeds in different proportions. Jo Sadler corroborated the evidence of her husband as to the occurrence of the meeting at Mr Reynolds' office and its content. The agreement with a publisher for the George Reynolds autobiography with Patrick Lavelle is for a division of the proceeds on a 50/50 basis.
- Although at first Mr Reynolds denied that any discussion had taken place in his office on 27th May 2001, he then said that he could not remember whether there had been a discussion in his office. He repeated that they had an agreement provided the goalposts hadn't been moved. Further, George Reynolds said that there was a proposal to split the proceeds of the book with John Sadler 50/50 although he alleged that 'this came on the table after I had refused to do the book with him'.
- Having regard to all the evidence, including the clear recollection of Mr and Mrs Sadler which 1 accept, the fact that the agreement George Reynolds entered into with Patrick Lavelle was for splitting the proceeds 50/50 and his answer in cross-examination that he probably would have entered into an agreement to split the proceeds 50/50, I find that on 2ih May 2001 George Reynolds and John Sadler agreed that the proceeds from the autobiography would be divided 50/50.
- Accordingly, I find that by 27th May 2001 John Sadler and George Reynolds had entered into an agreement for John Sadler to ghost-write George Reynolds' autobiography.
- George Reynolds told John Sadler of a visit he made in his helicopter to the orphanage where he had spent some of his early years. He accepted that it was John Sadler's idea to use this story as an opening for the book. I accordingly so find.
- As for the idea for the title 'Cracked It!', the evidence was that Mr and Mrs Reynolds entitled the tromp l'oeil autobiography in the library of their home, Witton Hall, 'From con to pro'. That title also appeared on the notes for an autobiography of her husband prepared by Mrs Reynolds and her initial draft dated 28th June 1997. The evidence of John Sadler (statement para 15) was that he had suggested the title 'Cracked It!' in a couple of meetings with George Reynolds. However, there is no contemporaneous corroborative evidence to this effect nor is the synopsis prepared by John Sadler so entitled. Correspondence with Alan Samson on behalf of the proposed publisher does not refer to the title. Whilst it is possible that the title was the idea of John Sadler I find that it is equally possible that the idea was that of Patrick Lavelle. Accordingly I find that John Sadler has failed to establish that the idea for the title 'Cracked It!' was his. However, for reasons set out below, I find that the claim for breach of confidence is subsumed in the claim for breach of contract.
- I find that in pursuance of his agreement with George Reynolds, John Sadler wrote a synopsis, and, in early 2002, negotiated the offer of a publishing agreement with a very reputable publisher, Time Warner. The publisher initially offered an advance of £60,000 which I find was notified by John Sadler to George Reynolds. Eventually following further negotiation by Mr Sadler, the publisher offered an advance of £70,000 which was to be split equally between Mr Reynolds and Mr Sadler.
- I find that enclosed with a letter dated 2nd April 2002, Time Warner sent George Reynolds three copies of the proposed publishing contract ('the publishing agreement'). I also find that John Sadler was sent a similar publishing agreement to sign describing him as 'the writer' of the autobiography of George Reynolds.
- George Reynolds admits that he did not sign the publishing agreement sent to him by Time Warner. He said in cross-examination that before the agreement was sent to him (in April 2002), he had made it quite clear to John Sadler that he was not 'going through with it'. Mr Sadler stated that it was not until he and the publisher had chased George Reynolds to sign and return his copy of the publishing agreement that George Reynolds told him on or about 16th October 2002 that John Sadler would not be writing the book. I accept the evidence of John Sadler. In my judgment John Sadler would have protested in writing on first hearing that Mr Reynolds was not going to proceed with him as writer and would have immediately so informed the publisher. Further, if Mr Reynolds' account were correct, in my judgment, George Reynolds would have so informed Alan Samson in reply to the publisher's letter of 16th September 2002 commenting that the publishing agreement had not been returned.
- John Sadler learned from a radio interview in April 2003 that an autobiography of George Reynolds had been published. He subsequently discovered that the writer was Patrick Lavelle. An agreement disclosed in these proceedings establishes that George Reynolds entered into an agreement with the writer, Patrick Lavelle, and a publisher, John Blake Publishing Limited for Mr Lavelle to write his autobiography. The agreement gave John Blake Publishing Ltd the exclusive rights to the autobiography and by clause 7(d) prevented George Reynolds from writing any other autobiography without the consent of John Blake Publishing Ltd.
- Given that an agreement was entered into between John Sadler and George Reynolds for John Sadler to write his autobiography, I find that Mr Reynolds was in breach by entering into the agreement on 10th July 2002 to write his autobiography with Patrick Lavelle. Further, by that agreement he gave exclusive publication rights in his autobiography to John Blake Publishing Ltd thereby putting it out of his power to honour any agreement with Mr Sadler.
Issues of law
- Apart from unparticularised denials, the specific matters raised in the pleaded Defence are issues of fact. However, having regard to the way in which, on occasion, George Reynolds has presented his case at trial and bearing in mind that he is a litigant in person, albeit with experience of one hundred civil and criminal trials, I will consider the question of whether any agreement between the parties was intended to have legal effect.
- The approach of the courts to contractual intention has regard to:
• The nature of the relationship between the parties,
• The context in which agreement was reached, and
• Any express declaration of intent.
(Chitty on Contracts 29th Edition Vol 1 paras 2-175, 2-159, 2-157).
Contractual intention is normally judged objectively. 'In the absence of ... an expression [of the absence of contractual intention] ...... the legal effect of an agreement which is clearly intended to give rise to some legal relations is not determined by the subjective intentions of the parties or of one of them ' (Chitty para 2-156).
- Mr Duodu drew attention to Hadley and others v Kemp and another (1999] EMLR 589 in which Park J held that on the facts of that case he was not satisfied that an intention to create legal relations had been established. In my judgment, the case is simply an illustration of the general principles referred to above.
- In my judgment, the only other issue of law which arises for consideration in this case is whether any duty of confidence in relation to the title of the autobiography and the idea for the first chapter can give rise to a cause of action independently of the claim in breach of contract. Confidentiality in original ideas is pleaded as an implied term of the contract between the parties. A cause of action in breach of confidence is asserted additionally or alternatively to the implied term.
- Even if the three elements essential to the cause of action for breach of confidence referred to in Coco v A.N.Clark (Engineers) Ltd [1969] RPC 41, namely (a) that the info1111ation was of a confidential nature, (b) that it was communicated in circumstances importing an obligation of confidence and (c) that there was an unauthorised use of the information, were satisfied in relation to the title of the book and the idea for the first chapter, is John Sadler able to establish that he has suffered damages for such breach in addition to damages for breach of the alleged ghost-writing contract? In my judgment, the claim for breach of confidence stands or falls with the claim in breach of contract and any claim for damages for such breach is subsumed in the damages for breach of contract. On the facts of this case, in my judgment, it is only if John Sadler establishes that George Reynolds entered into a contract with him for the writing of his autobiography that he can establish that the ideas in respect of which confidentiality is claimed were communicated in circumstances giving rise to a duty of confidence. Further, the ideas relate exclusively to the writing of the autobiography of George Reynolds. No damages flow from the breach of such a duty of confidence additional to damages for breach of any contract to co-operate in writing the book.
Did the parties enter into a contract for John Sadler to ghost-write George Reynolds' autobiography?
- The facts of this case place the agreement between the parties somewhere between an obviously commercial transaction and a social exchange. In my judgment, the onus is on John Sadler to establish an intention to create legal relations, albeit that the onus is a less heavy one than that which would be required to establish such an intent in the context of a purely social relationship.
- I have found that John Sadler has established that by 2ih May 2001 an oral agreement had been entered into between him and George Reynolds giving John Sadler the right to write George Reynolds' autobiography. It was, inter alia, an express term of the agreement that Mr Sadler would obtain a reputable publisher for the book and negotiate suitable terms for the publishing agreement and that all earnings from the book under any publishing agreement would be shared by Mr Sadler and Mr Reynolds on a 50-50 basis.
- In my judgment John Sadler has established an intention to create legal relations. He was an experienced journalist who met and dealt with George Reynolds in that context. Mr Reynolds was well aware that Mr Sadler had made money from his previous ghost writing. On the evidence, George Reynolds, too, hoped to make money from the autobiography.
- In paragraph 5.3 of the Defence served on behalf of Mr Reynolds it is pleaded that
"The Defendant did not, at any time, agree that the Claimant should be involved in writing such a book."
I have found that such an agreement was entered into. Although the contention is not raised in the pleaded Defence served on behalf of Mr Reynolds, because of his observation in evidence that 'A verbal contract is new to me', I have considered whether it could be said that it was the intention of the parties that the agreement was not intended to be binding until it was reduced to writing. In my view the evidence does not support such a contention. Nothing is alleged to have been said to that effect nor do the circumstances of the oral agreement indicate that it was not intended to have legal effect unless and until reduced to writing.
- Accordingly I hold that by 2ih May 2001 the parties had entered into a contract for John Sadler to ghost-write the autobiography of George Reynolds.
Was George Reynolds in breach of contract?
- By entering into a publishing contract on 10th July 2002 giving the exclusive right to a publisher to publish his autobiography to be written by Patrick Lavelle, George Reynolds was in breach of the contract he had entered into with John Sadler.
What is the measure of damages for the breach?
- On behalf of John Sadler a claim is made for £35,000 which would have been payable to him by way of an advance on royalties. Mr Duodu fairly recognised that in the light of the evidence of Mr Samson that the advance was a reasonable estimate of the royalties likely to be payable on the book, there was not a strong case for claiming additional royalties. A quantum meruit claim was made in the alternative to the claims based on the loss of advance and royalties although, whilst not expressly abandoned, it was not pursued at the hearing.
- In accordance with the proposed publishing agreement with Time Warner, £15,000 was due on signature of the agreement by both parties, £10,000 on delivery and acceptance of the work and £10,000 on first publication of the work in the UK by the publisher. In the light of the evidence that Mr Sadler is an experienced writer and a published ghost-writer and the fact that Time Warner is a highly reputable publisher, in my judgment those preconditions are very likely to have been fulfilled. However, on the evidence of Mr Samson, I hold that Mr Sadler has not established that he would have been paid more by way of royalties than the advance of £35,000. I accordingly award special damages for breach of contract in the sum of £35,000.
- On behalf of Mr Sadler, Mr Duodu contends that the breach of contract had caused a loss of opportunity to enhance his reputation. It is said that as a result of the breach of contract Mr Sadler has lost the opportunity to add another successful publication to the list of his published works and that this may well affect the likelihood of his obtaining future publishing contracts. Mr Duodu recognises the difficulty of quantifying any damages under this head and seeks the sum of £1,000. In my judgment it is likely that John Sadler has suffered loss of opportunity to enhance his reputation and that the loss of an additional title to his list of publications may affect his marketability. I award the sum of £1 ,000 as a reasonable estimate of the loss under this head of damages. Accordingly, I award a total of £36,000 in damages for breach of contract.
Was a duty of confidence in relation to the title of the autobiography and the idea for the first chapter owed independently of any contract to write the autobiography?
- Any duty of confidence in relation to the title of the autobiography of George Reynolds and the idea for the first chapter in my judgment was an implied term of the contract to write the book. The title to the autobiography and the idea for the first chapter have no value in themselves independent of the entitlement to write the autobiography of George Reynolds. Hence, even if a breach had been found, which was not in the case of the title of the book, no award of damages independent of damages for breach of contract would be made.
- Accordingly John Sadler is awarded the sum of £36,000 in damages for breach of contract.
