#6734 - Chief Constable Of The Greater Manchester Police V. Wegan Athletic Afc - Commercial Remedies BCL

Chief Constable of the Greater Manchester Police v. Wegan Athletic AFC

Facts

The defendant and appellant ("the Club") is a premier league football club with a home ground at a stadium in Wigan known as the JJB Stadium. In order that football matches may be played at the stadium it is necessary for the Stadium Company to be the holder of a certificate under the Safety of Sports Grounds Act 1975. The certificate in force for the seasons with which this appeal is concerned, namely 2003/04 and 2004/05, required the Stadium Company to secure at its expense the attendance of "such number of police officers as in the opinion of the Chief Constable is sufficient to ensure orderly behaviour of spectators".

The Club had been promoted at the end of the 2002/03 season from Division 2 to Division 1 with the consequence that additional policing at home matches was likely to be required.

Before and during the 2003/04 season there were a number of meetings between Mr Mason and other representatives of the Chief Constable and Mrs Spencer, the Chief Executive of the Club, and Mr David Whelan, the chairman of the Club and principal shareholder in the Stadium Company, at which the representatives of the Club refused to pay for policing over and above the levels of policing enjoyed in previous seasons. Notwithstanding these objections policing was provided by or on behalf of the Chief Constable at a higher level, that is to say by the deployment of more officers than in the previous season. Such levels were discussed at pre-match safety meetings and reflected in post match invoices.

In January 2005 the Chief Constable threatened to bring proceedings against the Club for the recovery of the unpaid balance of the cost of policing actually provided.

Holding

The Chancellor

I prefer the submissions of counsel for the Club. It is clear both from the terms of s.25 and the decision of the Court of Appeal inReading Festivalthat 'the request' must match the special police services supplied. The match need not be exact because it is for the Chief Constable to determine the level of policing required. So, if a person asks the police authority to provide special police services at a private event and the services are provided at the level the police authority considers to be necessary it is no answer to the police authority's claim for reimbursement of the costs that the request had not specified the level of policing actually supplied. Conversely, if a promoter asks for onsite policing and the police authority concludes that only offsite policing is required it cannot, without more, charge the promoter for the offsite policing for which he did not ask.

But that limited view of the dispute appears to me to be inconsistent with the judge's findings of primary fact. Those findings make it clear that the Club objected to the increase in the numbers of officers deployed at its home matches in any particular category as demonstrated by a comparison of the charts reproduced in paragraphs 10 and 12 above. That this was the nature of its objection was accepted by the judge in the passages in his judgment from which I have quoted or to which I have referred in paragraphs 13 and 14 above. And that was the objection to which Mr Whelan was referring in his oral evidence… There is no question of departing from the judge's findings of primary fact nor even from his primary inferences. But if the Club's objection was to the level of policing, irrespective of whether it was entitled to do so, it is impossible to infer a request for the provision of the special police services to which it objected. This is the only possible conclusion consistent with the decision of this court in Reading Festival.

It is necessary to consider the consequences of a conclusion that the Club did not request the special police services for which the Chief Constable seeks to recover.

The question then arises whether even in the absence of a request for the purposes of s.25 the Chief Constable is entitled to reimbursement by way of restitution… I accept, as both counsel acknowledged, that this issue must be considered on the basis that there was no request for the special police services in dispute, either express or implied.

Benefit from the Extra-Policing

I start with the issue of benefit to the Club. This is the first essential ingredient. Mann J considered that it clearly existed because:

"As well has having the match properly policed on the ground, [the Club] was able to fulfil the requirements of the safety certificate and thus play its matches..."

This is true if the benefit is identified as the provision of special police services generally. But the dispute relates to the cost of policing above the manpower levels which were considered to be sufficient in the season 2002/03. The question is whether the Club obtained a benefit from the deployment of officers over and above those deployed in the earlier season. It is not self-evident that the extra manpower deployed in the seasons 2003/04 and 2004/05 was of extra benefit to the Club. There was no evidence directed to that question. It may be that policing at the lower level enjoyed in the earlier seasons would have been sufficient. It is idle to speculate.

Free-acceptance – not established

As the passages in Goff & Jones on restitution to which I have referred make clear, a benefit from services rendered which is neither 'incontrovertible' nor requested may be established by their "free acceptance". But the concept of free acceptance, as explained in paragraph 1-019, requires that the recipient "did not take a reasonable opportunity open to him to reject the proffered services". The relevant services were the supply of special police services at the level, in excess of that provided in the season 2002/03, to which the Club objected. The Club was unable to reject those services unless it also rejected the services which it did want and had requested. To do that would have meant that the Club could not play their home matches in the Stadium at all. In my view it is clear that there was no free acceptance of the services in dispute because the Club were, in practice, unable to reject them alone.

Lady Justice Smith

At Schedule A of the certificate it was provided that the Holder should secure, at its expense, the attendance of such number of police officers as, in the opinion of the Chief Constable, was sufficient to ensure the orderly behaviour of spectators. The words 'at its expense' imply that, in order to comply with the safety certificate, the Club would have to request, as SPS at the level of policing which the Chief Constable thought was sufficient to ensure the orderly behaviour of spectators.

There was no evidence that the Chief Constable had ever said that the greater number of officers which he intended to deploy were necessary because any fewer would not be sufficient to ensure the orderly behaviour of spectators. It may now be inferred that that was what he thought. However, the police never suggested that the Club would be out of compliance with its certificate if it requested only the lower level of SPS which it did in fact request. The Chief Constable, or Mr Mason acting on his behalf, could have taken the line, in negotiation, that the higher level of policing was required in order to comply with the certificate…. Now that it has been established that the Club only ever requested the lower number of officers as SPS, it would appear that the Chief Constable had been under a misapprehension as to the level of SPS requested. It seems that he mistakenly believed that the Club had (impliedly) requested the greater number and could be required to pay for them.

Mann J also held that the Club obtained a benefit because it was able to fulfil the requirements of its safety certificate and thus play its matches. I can see how that could be...