#6643 - Irvine V. Talksport - Commercial Remedies BCL

Irvine v. Talksport

Facts

Prior to 2000 TSL (under its then name Talk Radio UK Ltd) operated a commercial news and talk-back radio station known as Talk Radio. In 1998 or early 1999 it was decided that the station should change its “on-air” character from news coverage and talk-back to sports coverage. This in turn involved “rebranding” the station by changing its name from “Talk Radio” to “TalkSport” (and by changing TSL's name to its present name). These changes were made in about February 2000.

In early 1999, to support the change to sports coverage and to generate interest among potential advertisers, TSL embarked on a promotional campaign, under the guidance of a specialist marketing company called SMP Ltd (“SMP”). The campaign consisted of sending boxed packs to just under 1000 recipients who were thought to be likely, directly or indirectly, to place advertisements on the station. Three boxed packs were produced: one related to cricket (TSL having acquired the rights to cover the England cricket team's winter tour of South Africa); one was of a more general nature; the third, with which the present action is concerned, related to Formula One (“the Formula One pack”).

On the front page of the leaflet, under the title “GRAND PRIX”, there is a photographic image of Mr Irvine dressed in the racing gear of the Ferrari team (which Mr Irvine had joined in 1996) and apparently holding up to his left ear a small radio on which the station's logo clearly appears. Mr Irvine is shown with his right hand raised to his right ear, as if to block out background noise from revving racing car engines, thus giving the impression that he is listening intently to the radio, and hence (given the logo) to Talk Radio. Immediately underneath the photographic image appears, once again, the station's logo and, alongside the logo, the words “… we've got it covered!”.

It is also common ground that at the time Mr Irvine knew nothing of the Formula One pack or its contents, and in particular that he had not agreed to the use of the image in the leaflet or to give any kind of endorsement of Talk Radio. In the action, which was commenced on December 22, 2000, Mr Irvine alleges that by 1999 he had built up a valuable goodwill and reputation in his name and image; that the image on the front of the leaflet was calculated to deceive, and would lead a substantial number of members of the public in the United Kingdom to believe (contrary to the fact) that he had endorsed Talk Radio.

Holding

In the instant case, the judge was in my judgment plainly correct to conclude (in para.[7] of the second judgment) that the principles identified by Lord Wilberforce in General Tire are applicable to the issue as to what would be a reasonable fee for Mr Irvine's endorsement of Talk Radio. The question, therefore, is whether, applying those principles to the evidence before him, he was also entitled to conclude that a reasonable endorsement fee would have been 2,000.

It is clear from Lord Wilberforce's speech in General Tire that a reasonable endorsement fee in the context of the instant case must represent the fee which, on a balance of probabilities, TSL would have had to pay in order to obtain lawfully that which it in fact obtained unlawfully (see in particular the passage from the judgment of Fletcher Moulton J. in the Aluminium case, quoted by Lord Wilberforce). It is not the fee which TSL could have afforded to pay: hence the judge was correct to conclude (in para.[16] of the second judgment) that TSL's financial situation is irrelevant.

What is the reasonable fee in this case?

The unchallenged evidence of Mr Irvine in his second witness statement was that in 1999 his minimum fee for an endorsement of Talk Radio would have been “in the region of US$40,000 to US$50,000 (25,200 to 31,500)”. That evidence was supported by his evidence as to the endorsement fees which he in fact negotiated in 1999, none of which was worth less than 25,000. However, in para. [11] of the...