Legends Live Ltd v Harrison

MR JUSTICE EDIS: This is a claim for an injunction to enforce a term in an employment contract which is, it is agreed, a restraint of trade. The Claim Form was issued on 9 June 2016, along with an application for an interim injunction. On 15 June I dismissed the application but directed a speedy trial. The trial was heard on 7, 8 and 11 July and this judgment is being delivered at 2 pm on 12 July. It is essential, for reasons which will shortly appear, that the parties should have a decision as soon as possible and there is no time to reserve judgment in order to hone the expression of the decision to which I have come.

The trial has not been rushed and the thought process which has resulted in my decision has not been rushed either. The only sacrifice to speed which has occurred, is that of actually physically drafting the document. Any infelicities of style in the judgment are the result of that.

The claimant is a company which produces a show called Trevor Chance’s Legends at a venue called The Sands in Blackpool. This is a "multi-tribute" show which means that it features a number of acts by performers who each perform in the character of a different famous artist. Another phrase to describe it is a "look/sound alike show". The defendant, Craig Harrison, is a Michael Jackson tribute performer. The claimant's show features a live band and a compere and usually has about nine or perhaps ten different acts. It has run for many years.

Between 2002 and 2012 (at least) the show was performed at the Central Pier Show Bar in Blackpool. I take those dates from the evidence of Mr Armitage who worked on the show as a sound engineer between those dates. I think the show was in fact being performed before that. The Central Pier and The Sands are both on the seafront at Blackpool and not very far apart. Sands is owned and operated by a company called Coolfun Limited which appears to be controlled by Peter Swan. The Central Pier venue is owned and operated by Blackpool Pier Company Limited ("BPC"). It appeared from the evidence that the company is controlled by Peter Sedgewick. At any rate, Mr Sedgewick is a director of the company and of sufficient significance that copies of some letters were sent to him in the course of the dispute which I am about to describe.

I did not hear evidence from Mr Swan or Mr Sedgewick, but I did hear from Gemma Broadly who is employed to manage the three piers in Blackpool on behalf of BPC. The Central Pier Show Bar in Blackpool is now the venue for another multi-tribute show which competes directly with the claimant's show. That show is produced by Mr Nick Armitage who trades as Northern Music Audio Visual.

In 2012 the claimant had a dispute with BPC and its show moved to The Sands from Central Pier. The dispute continued into 2013. This dispute was not the subject of very much evidence and the merits of it are not relevant to anything I have to decide. The clause in the contract between the claimant and the defendant on which this litigation turns was concluded in December 2014. By that stage, the Central Pier and The Sands were in fierce competition for custom and on very poor terms with each other. That is part of the factual matrix against which that clause in the contract falls to be construed.

Although it was suggested in the course of evidence that there were some other multi- tribute shows in Blackpool, when they were put to Mr Trevor Chance in cross- examination, he was not aware of them. I conclude that, if they were of an equivalent size and prominence to his show and to the Central Pier show, which is called Kings and Queen of Rock, he would have heard of them and I therefore find that these two shows on the seafront were on a higher level of prominence than anything else in this format on offer in Blackpool. Although they compete fiercely with each other and with other forms of entertainment offered to the public, there is no other direct competition for them in Blackpool.

As is well known, the Blackpool market is seasonal. There is some entertainment at Easter and at the Spring bank holiday, but the real season starts in late June and runs to the end of October or into early November. The busiest times are August during the school holidays and September when the famous illuminations are switched on.

Kings and Queen of Rock had its origins in 2013 which was the first season after the acrimonious departure of the claimant from the Central Pier. It was developed urgently during the season by Mr Armitage after another act pulled out ten weeks into the season. For the 2014 season, a new show was developed which featured Clayton Mark as Elvis Presley and Kevin King as Freddie Mercury. It is a show which involves live singing to recorded music and which intertwines for dramatic effect the lives of its subjects. The two principal performers in 2014 bore a very heavy load because they effectively had to do half of the work each and Mr Mark told me, and I accept, they found it very exhausting.

In 2015 they decided to add a third character which would ease the burden. Frederick Henry was engaged for 2015 to perform as Michael Jackson. I have not heard from Mr Henry, either as a witness or as a performer, and can only record the evidence about him which I did hear and which may not perhaps be entirely fair to him. Everyone who gave evidence agreed that Mr Henry was not suitable as the Michael Jackson part of the Kings & Queen of Rock show and had to be replaced. Mr Trevor Chance who operates the claimant's show, Legends, said that he would not be acceptable for the claimant's show because it was a very high quality show. Mr Armitage and Mr Clayton Mark both agreed that he was not suitable and Miss Broadly said that Mr Sedgewick did not want him back at the Pier either. Kings & Queen of Rock intended to continue into the 2016 season and was in want of a Michael Jackson performer.

Meanwhile at The Sands, the defendant was doing very well. The witnesses were as unanimous about him as they were about Frederick Henry. The defendant is a very good Michael Jackson act indeed. One newspaper article appeared about him in a local paper called The Gazette, on 10 June 2015 on the eve of the 2015 summer season. This said that his Easter shows had won standing ovations every night. It explained his career history, which was that he had been in the army and then, on discharge, had a job in the building industry. He performed his act as well as working in that way, and his contract signed on 4 December 2014, enabled him to give up his day job and go full-time into show business. This was very much what he wanted. This account, as given in the press article, is all confirmed by the defendant's own evidence.

The article in The Gazette makes it clear that the Legends show was a major career development for the defendant, which is not something that the defendant in his evidence agrees to quite so readily. The defendant did agree in evidence, having been urged to put modesty aside, that his act is very well received wherever it is performed.

At the end of the 2015 season, the defendant decided not to appear in the claimant's show in 2016 as he previously indicated he would. The claimant had offered different terms for 2016 from those in the 2015 contract signed, as I have said, in December 2014. For 2016, the offer was three shows a fortnight instead of five. Although the fee per show was somewhat increased, the overall income to be earned was lower.

The offer, reduced as it was, resulted in an exchange of texts on 23 and 24 November 2015 between the defendant and Mr Richard Chance from whom I heard in evidence and who is the artistic director of the claimant's show. Mr Chance wanted to arrange some promotional filming for 2016 and also to agree the dates for the shows that season. The defendant replied saying:

Mr Chance replied, wrongly saying that his departure, or rather his refusal to enter into a new agreement, would put the claimant in breach of contract with The Sands Venue. He said:

That did not result in a counter-offer from the defendant who said that he couldn't really say how much money was required to keep him with Legends so Mr Chance offered £900 a week for the three nights instead of the £750 per week which had previously been on the table. That was £100 a week less than the 2015 contract had provided.

The defendant said this:

Mr Richard Chance responded by expressing his concern at the damage to the show which would occur if the defendant was not part of it in 2016. He said:

The defendant said that there was not, and apologised for causing any difficulty, making the point that he had told them of his decision very soon after the end of the 2015 season. He said:

I proceed on the basis that the defendant was dealing entirely transparently with the claimant at that stage. He may have been considering other options, but he had certainly not reached any agreement with the Kings and Queen of Rock show for the following summer.

The significance of that exchange is twofold. First, it is relevant to the complaint that is made on behalf of the defendant that there was an inequality of bargaining power. Assuming, as I do, that his reasons set out in the texts were genuine reasons for not wanting to contract with Legends, the nature of that exchange militates against the kind of inequality of bargaining power which Mr Egan on his behalf urged upon me. Secondly, assuming, as I do, that Mr Richard Chance was also expressing his genuine response to what he was told, this tends to support the claimant's case that, as at November 2015, as a result of work done during 2015, the defendant had become a very important part of the Legends show and his departure would cause significant problems.

In December 2015 the defendant approached Mr Clayton Mark who was the artistic director of the Kings and Queen show, as well as one of its principal performers. He asked Mr Mark whether they wanted a Michael Jackson act. I have heard evidence about what transpired from Mr Harrison and from Mr Mark and from Mr Armitage who was responsible for the business aspects of the Kings and Queen of Rock show, as well as for the provision and use of his equipment in it. They all agree that the defendant discussed the possibility of appearing in the Kings and Queen of Rock show and it was agreed with Mr Mark and Mr Armitage that he would join the show as "The Legacy" with a dance troop called "The Invincible Dancers” which the defendant would engage. At Legends the dancers were engaged by the claimant, the producer of the show. The work of arranging the cooperation between the dancers and the defendant therefore at Legends involved the claimant and Mr Richard Chance. At the Kings and Queen of Rock show, the defendant was going to arrange that himself, probably with the assistance of his girlfriend, who is, he told me, a choreographer.

In the course of these discussions, the defendant told Mr Armitage and Mr Mark about a barring clause in his contract. He only had a copy at that stage of the front page of the contract because he had posted the original back to the claimant after signing it in December 2014 and had later asked for a copy and been provided only with the first page. That was controversial in the course of the trial, because the claimant's case was that Mr Harrison did have a copy of his contract at this stage. That was based on an email which he had written to Brenda Chance, who is the wife of Mr Trevor Chance and the mother of Mr Richard Chance, and who handles contracts and other aspects of the business on behalf of the claimant. In that email he told Mrs Chance that he had been reading his contract recently.

He told me that he said that because he did not want the claimant to know that he did not have a copy of his contract in case they sought to tamper with it. His evidence that he did not have a copy of the contract is confirmed by Mr Armitage and also by the fact that it was later necessary for Mr Byers of Equity who acted later on behalf of the defendant, to ask for a copy. I therefore resolve that issue of fact in favour of the defendant. I find that he did not have a complete copy of his contract at that stage.

He had, however, obviously read and understood it because he remembered the covenant in restraint of trade not having refreshed his memory about it in the 12 months since he had signed it. That is how he was able to tell Mr Armitage about it. Mr Armitage in his witness statement said this:

I have set that passage of the evidence out in full because it is of significance to the third line of defence taken by the defendant to this claim and I shall not repeat it when I arrive at that stage.

As Mr Armitage said in his witness statement and repeated in evidence, he has still not seen the original contract and he told me that he would very much like to. I assume that this is because he too is concerned that there may be a possibility that the copy on which these proceedings are based is not an accurate copy of that which was signed. There is no issue to that effect in these proceedings, and it is agreed that the contract which I am about to deal with is the contract that was concluded between the parties. Because I do not have the original, it is necessary for me to infer something about its form from the appearance of the copy documents.

It is a contract which describes itself as "Also known as Act as Known contract". It bears the logo of Equity, the actors' union, at the top left of the page and of the Agents Association in the top right of th page. Mr Day and Mr Byers, both of Equity, both of whom gave evidence before me, told me of something of the history of the negotiations between the various interested bodies which had resulted in this form of the contract coming into existence. It says that it was approved on 30 June 2008.

On the front page the contract begins by identifying the parties and then the dates of the engagements, the name and type of the act and the venue where the performances were to take place. Certain other conditions were set out and then there is a box entitled "Additional clauses" which is no doubt blank in the standard form but which has been filled in in the case of this contract to provide the dates when performances were to take place and the rate of £1,000 a week. The box, i.e. the non-standard part of the contract, also contains in capitals this:

Beneath that box and as part of the standard form appears this:

There is then a place for the hirer and the artiste to sign and, in this version, Mr Harrison the defendant has signed it, and it is stated that the contract has been issued by Legends Live Limited.

In the standard form, below that the words "Acting in the capacity of an employment agent/business - delete as appropriate", appear printed on the form. These words do not appear on the version used by the claimant. Mr Trevor Chance was not able to explain, at any rate satisfactorily, why that was. The words which are omitted in the contract signed by the defendant have a significance because of the Employment Agencies Act 1973 and regulations made under that Act to which I will return.

On the reverse of that front page is a series of standard terms entitled "Clauses and conditions". Historically, these clauses and conditions had included a barring clause, but by the date of this version that had been omitted. At the foot of that page the documents says that it had been approved by Equity, the National Agents Association of Great Britain, and the Variety and Light Entertainment Council. The clauses and conditions are not of relevance to the issue which I have to determine, except that I should record that there is an arbitration scheme provided by the contract. That standard form contract had, therefore, been modified by the claimant to the extent that I have just described.

Also in existence is a bespoke document, clearly created by the claimant for its own business. It is headed "Legends Blackpool Terms and Conditions". Whereas the standard printed form refers to the clauses and conditions on the reverse of the contract, the contents of the box which had been entered on the front of the contract, referred to "the attached terms and conditions" as forming an integral part of the contract. This is plainly a reference on the face of the contract to these non-standard terms.

A number of the terms and conditions specifically refer to Legends and indeed to Blackpool. These are therefore clearly not standard terms and conditions approved by Equity or the National Agents Association of Great Britain, none of whose logos appear on the page where they are set out. One of these terms is the term with which this litigation is concerned. It says:

Both parties have signed those terms and conditions in addition to incorporating them by the words to which I have referred in the standard form contract signed by the claimant.

The meaning of the covenant is agreed. On its face, it prevents the claimant from appearing in a multi-tribute show in Blackpool for 12 months from October 2015. It allows him to appear in a solo show and perhaps allows him to appear in the same place as other solo tributes act. He cannot, however, appear in a show in which the acts are directed and presented so that they are part of a structured and coherent entertainment. Both the claimant's show and the Kings and Queen of Rock show, fall within that category.

Mr Day in evidence made the point that that is perhaps not exactly what the contract says. When I raised the possibility of the meaning of the contract as well as its enforceability being in issue, Mr Roe QC, who appears on behalf of the claimant, persuaded me by reference to the pleadings that there is no dispute about the meaning of the contract which is as I have explained it.

It follows, in my judgment, that the any advice about the contract given by a person who had not seen it, would be of limited value and I would expect a competent and careful adviser to include in it a caveat that any such advice is subject to sight of the contract. Again, that has relevance in considering the third line of defence to which I shall turn at the end of this judgment.

The history of the covenant, as I shall refer to it, is also of some relevance, in my judgment. It was inserted into the contracts of engagement of the performers in the Legends' show after the move to The Sands in 2013 and in consequence of the acrimonious competition between the two shows. Mr Trevor Chance said that and Mr Clayton Mark told me that he had worked for the Legends' show for a number of years before that time without any written contract at all. It is to be observed, therefore, that the factual matrix against which the contract is to be construed is that it came into existence at a specific time for use in a specific place and for a specific reason.

On 1 January 2016, the defendant posted on his personal Facebook page a message which I shall quote in full:

On 3 January, the Kings and Queen of Rock, Pop and Roll show posted on its Facebook page:

The next day, 4 January, the defendant shared that post with his followers saying:

During the events which followed those Facebook posts, the claimant asserted its entitlement to rely on the covenant in the contract and the defendant, through Equity, his union, denied that it was enforceable. These events are relevant to the third defence now advanced by the defendant in these proceedings and I will deal with them later in this judgment when I address that question.

As I have said, the claimants accept that the covenant is in restraint of trade and therefore that the claimant must justify it. There is no issue about its meaning. The defendant raises three defences to the claim against him. These are

I shall deal with each issue in turn, identifying my findings of fact, where necessary to resolve them. I shall not set out lengthy quotations from the evidence. It was all given very recently; it is all very fresh in my mind and for, future reference as necessary, these proceedings have been recorded by Livenote and a transcript of the evidence is also therefore already in existence and I have been able to refer to that.

Mr Egan's helpful skeleton argument served before the start of the trial, encapsulates the issue concisely at his paragraphs 3 and 4. It is suggested that the clause relied upon, the covenant, is unenforceable because (1) the claimant was acting as an "employment business" within the definition set out in section 13(3) of the Employment Agencies Act 1973; (2) the clause is therefore unenforceable pursuant to the 2003 Regulations, paragraph 5(1); and (3) that seeking to enforce the clause amounts to a criminal offence as any person who contravenes or fails to comply with any of the regulations in the 2003 Regulations is guilty of a criminal offence under section 5(2) of the 1973 Act. Mr Egan goes on to submit that a contractual clause that is unenforceable under the 2003 Regulations shall be severed, in essence, from the contract under paragraph 31(1) of those Regulations and that, indeed, is the effect of that paragraph.

Summarising the dispute, in a nutshell Mr Egan says "the key dispute between the parties on this issue is whether the claimant was acting as an employment business when it supplied the defendant to The Sands Venue for the summer 2015 season. The claimant denies that it acted as an employment business on the grounds that The Sands Venue did not have control over the defendant and the defendant did not act for The Sands Venue. The claimant also denies that it supplied the defendant to The Sands Venue. It is to be noted that the Act creates a criminal sanction. It is to be construed, therefore, having due regard to the principle against doubtful penalisation along with all other relevant criteria of interpretation.

The 1973 Act contains an interpretation section, section 13 which, by subsection (1) defines "employment" as including "employment by way of a professional engagement or otherwise under a contract for services". It is for that reason that there is no issue that the defendant was, for these purposes, employed by the claimant.

By subsection (3), the Act says this:

The first question, therefore, is: did the claimant supply the defendant to The Sands Venue? The claimant contends that it supplied the whole show to the venue and not individual acts. The claimant does supply individual acts, including on occasions in the past, the defendant to Sands as a solo act. But this contract was not part of that activity.

The second question is: was the result of the arrangement that the defendant was to act for and under the control of The Sands Venue? The claimant's answer to the defendant's case on that issue is pretty much the same as it is on the first question and, on analysis, in my judgment, they are not really separate questions. The act of supplying A to B can only be so described if A thereby acquires some control of B who is to act for A. Supply of a human being involves a transfer of an ability to direct the action of B from the supplier to the recipient of the supply.

The contract between The Sands Venue, Coolfun Limited, and the claimant is at the heart of the defendant's submissions. Mr Egan submits that this contract gave Coolfun Limited a sufficient level of control over the defendant to mean that he was supplied by the claimant to The Sands Venue for the purposes of the 2003 Regulations. I will not set out the terms of that contract in full. The important terms are 2.1 to 2.9 and 10.1. These terms in the paragraphs of clause 2 to which I have referred, impose certain obligations on "Talent". Talent is defined in the contract as "The Legends show", which is not a party to the contract strictly, and the claimant, which operates the show, is described as "Talent's Representative". 10.1 provides:

The defendant is, of course, not a party to this contract and he was part of the Talent. Thus the way in which the contract enables Coolfun Limited to secure the conduct that it desires of Mr Harrison, is by placing an obligation on the claimant to procure that conduct.

In my judgment, it is apparent from the contract that the end result of the suggested supply is that the claimant retained the predominant ability to direct the conduct of the defendant in the course of his work. Mr Richard Chance was the artistic director of the show who supplied the dancers, the band, the lighting and who was responsible for coordinating the act. The venue, Coolfun Limited, did not have any control over any of that work, only a right to make recommendations and requests and to refuse written consent to changes, including changes to the composition of the group of which the defendant was part.

There is an element of control in clause 2.9 which is, of course, subject to clause 10.1 in the way that I have described at [53] above. Nevertheless, that clause does confer a right on the management to give instructions which it expects Talent to comply with. I construe this clause as conferring a right on the management to direct the conduct of Talent via Talent's Representative so far as necessary for the management of the premises and, so far as it is not inconsistent, with any other contractual provision whereby only a right to make recommendations is reserved. By this I mean that, if the contract gives Coolfun Limited a right to make recommendations as to the content and conduct of the show, it would be inconsistent with that term of the contract to say that clause 2.9 gives Coolfun a right to give instructions about precisely the same subject matter.

In any event, in my judgment, this question is not to be answered simply by reference to the terms of the contract. The reality of the arrangement which was contemplated by the parties is also relevant. Mr Trevor Chance said in his evidence that in practice the venue never gives instructions about how the show is performed as opposed to when. Discussions take place, but the show is produced by the claimant and supplied to the venue as a finished product, at least by the time the curtain goes up. Mr Harrison does not in evidence suggest that he was ever actually controlled by the venue in any direct way.

There is a legal issue about the test to be applied to this situation. The claimant relies on Accenture Services Limited v HMRC [2009] EWHC 857 (Admin) which is a decision of Sales J (as he then was). The context of that decision appears from paragraphs [25] and [26] and was different from the present. However, the decision is squarely a decision on the same issue which I am presently addressing, although the issue had arisen in a different way.

The decision is at paragraphs [40] to [43] inclusive. It is unnecessary for me to set those paragraphs out in full. They are publicly available. At the end of paragraph [41] the judge said this:

The judge then turned to the meaning of the phrase "under the control of" and found that, properly construed, that lent support to that conclusion. He rejected the proposition that, where two parties had the ability to control aspects of the conduct of an employee, any significant level of control would be sufficient. He said:

If that is the right test, then on the construction of the Coolfun contract and on the evidence which I heard, there is no doubt that the predominant controller of the defendant's activity during the currency of this contract was the claimant and not the venue.

Mr Egan responds by saying that the decision of the Employment Appeal Tribunal in Motorola v Davidson [2001] IRLR 4, was not cited to Sales J and that, if it had been, a different result would have emerged. I do not agree. The question that the EAT decided was not the same question as the one posed to me. The EAT was required to decide whether, after an employee had been seconded to work away from his employer's premises under the direction of another person, that other person became, for the purposes of the Unfair Dismissal Scheme, his employer. The EAT decided that it did, but, when it did so, it applied a legal test which is set out as follows:

In other words, the decision of the EAT was a decision of mixed law and fact and they decided on the facts before them that Motorola had, by virtue of the secondment and the way in which it was done, become, for the purposes of the question which it was asked to determine, the employer of the person who was dismissed, Mr Davidson. Therefore, the EAT approaching the case which I have to decide, would presumably also approach it on the facts as I have found them to be. If they applied the test just cited, they would not find that the deployment of the defendant in the Legends show at The Sands was a sufficient transfer to the venue over and manager of the premises for present purposes.

For this reason, because I agree with Sales J and am not simply relying on his decision as a precedent and following it, I will follow it and apply the test which he explained. I reject Mr Egan's submission that I should construe these regulations more broadly in a purposive way because the provision with which I am concerned is the one which defines those who are to be protected by the regulations. I accept that the purpose of the regulations is to protect those people, but in defining who those people are, the purpose is a less clear guide than the words used. To put it another way, the submission begs the question. On my findings of fact, therefore, applying the law as I understand it to be, the defence relying on the 2003 Regulations fails. That does not mean that those regulations never apply in contracts whereby performers perform at venues; it applies to the facts of this case where the claimant was not acting in any real sense as a theatrical agent. The claimant was acting as a producer or promoter of a show. That necessarily involves hands-on control of the performers.

The law in this area is agreed and the tests are as I have stated them above to be. This requires a highly fact-specific decision. I have found and have explained above that the practical effect of the covenant was to prevent the defendant working for the claimant's only direct competitor for one summer season and a few engagements earlier in the year. In effect, the covenant restrained his trade by denying him four months' work at a multi-tribute show in Blackpool. He could do whatever he was able to do anywhere else in the country, he could do whatever he wanted in Blackpool when he would not be competing with the claimant because the claimant's show was not on, and he could work as a solo act in Blackpool while the claimant's show was on. That is a very much narrower restriction on his ability to trade than might have first appeared to be the case.

The first question is whether the claimant has established a sufficient legitimate interest to be protected. The claimant had introduced the defendant to Blackpool, or at any rate to the prominence in Blackpool which he acquired during 2015. His own Facebook posting (quoted above) and The Gazette article referred to above make that clear. He had acquired in Blackpool a reputation and a profile which was associated with the Legends show. The extent to which it was associated with the Legends show was the subject of some dispute in evidence. In the end, the position appeared to be clear. There was, as I have said, only one newspaper article published during 2015 which told the public who the Legends' Michael Jackson performer was. However, that information was available and published by the claimant on its social media publicity which, in the modern era, is a most potent way of publicising events and causes.

At the end of each show, the acts all appear together in a form of parade and the compare announces the name of the performer who has, in the case of this defendant, been appearing previously only under the name and appearance of Michael Jackson. It is no doubt at that point that the standing ovations to which I have referred may occur.

The joint activity, therefore, of the claimant and the defendant had extended and burnished the professional reputation of both of them. The claimant had, as I find, invested time and money in producing the defendant as part of its show. Both Mr Trevor Chance and Mr Richard Chance said that a purpose of the covenant is to ensure that they get at least two years out of a performer on whom that time and money has been expended. It is uneconomic to make all that effort for a single season.

There is a dispute of fact between Mr Richard Chance and the defendant about how much work Mr Richard Chance actually did for the defendant and the extent to which the defendant arrived with the claimant as effectively the finished article. Clayton Mark and Nick Armitage both explained in their evidence in some detail how much work would be required to get another Michael Jackson into their show or to recreate their show this summer without a Michael Jackson. Mr Armitage thought it might take two months if they lose Mr Harrison to put any sort of presentable show together because such a lot of work is required. They both said that in January and February they had to take the risk of using the defendant even knowing about the covenant because there was so much work to do to get their show ready. That was so, even though the defendant was going to engage the dancers for 2016, whereas in 2015 that work fell on the claimant.

I entirely accept that the defendant was responsible for almost all of his own act and was also responsible, I have no doubt, for making it clear to the band, the lighting engineers and the dancers and others involved what he wanted. However, it is only natural, in my judgment, for a person in his position to believe that the whole thing depends entirely on him and perhaps to overlook or ignore the efforts of others to the success of his enterprise. Mr Richard Chance was gracious in allowing that the defendant was highly influential in all the decisions that were made, but nevertheless clear in saying that he had work to do which involved, for example, writing some music, and working on choreography. The defendant was very rarely present while the dancers were practising the choreography. They did that by reference to videos which the claimant had produced of him so that they could see how he worked.

I also find that the defendant's credibility generally is somewhat undermined by his account of signing his contract with Mr Armitage on 21 January 2016 in reliance on the advice of Mr Byers of Equity. It will be recalled that the passage from Mr Armitage's witness statement quoted above is to the same effect. But it transpired that Mr Byers had not seen the contract by 21 January 2016 and said in any event that he would never give advice in such dogmatic terms as both Mr Harrison and Mr Armitage recalled, even in the strongest case. His concluded view on seeing the covenant was that it was unenforceable for the reasons set out in his email to the claimant of 11 February 2016, but he accepted in his evidence that he thought "there was a debate to be had". Before seeing the covenant, he must, in my judgment, have been even more firmly of the view that there was a debate to be had.

Therefore, on the issue of the contribution to the defendant's act for the 2015 summer season, I prefer the evidence of Mr Richard Chance, which is far more in keeping with that of Mr Clayton Mark and Mr Nick Armitage than the evidence of Mr Harrison.

Therefore, it appears to me that there is a legitimate interest which the claimant was entitled to protect by effectively seeking to restrict the ability of a performer taking its preparatory work and the extent to which its reputation had been burnished by the performer to the only direct competitor.

Is the covenant too wide and therefore unenforceable for that reason? On a superficial examination, it appears so. I accept the evidence from Mr Day and Mr Byers that these clauses are not commonplace and I reject Mr Trevor Chance's evidence that they are. He was not able to tell me about any other contract which includes such a term. Mr Trevor Chance's evidence did gain some support from the passage of Mr Armitage's witness statement quoted above which suggested not that such covenants are unheard of, but that they are generally shorter. Nevertheless, I do accept that a barring clause for a duration anything like 12 months is very unusual in the entertainment business. 12 months for a covenant of this kind is a long time. However, as I have observed already, the actual significance of this covenant in the facts which prevail now, is much more restricted than must have appeared to be the case to Mr Byers when he first heard orally of the existence of the covenant.

The unfairness which particularly exercised Mr Byers in his email is that a performer who wants to work every summer season in Blackpool in a multi-tribute show has to work for the claimant on whatever terms the claimant imposes when offering a new contract. There is no obligation on the claimant to offer a new contract for the following year or, if it does so, to match or exceed the terms of the previous year. Such a performer, if the covenant is enforceable, would have to make other arrangements for one summer season and to return to multi-tribute work in Blackpool after one summer.

This complaint is related, in my judgment, to the inequality of bargaining position argument. Actually, there is very little evidence of this in this case and some evidence to the contrary. Mr Armitage and Mr Mark both said that they could not find another Michael Jackson who sings live and who was available and good. The most famous Michael Jackson does not sing live. I infer that they took the risk of employing the defendant knowing about the barring clause because they could not find anyone who is as good and who was free of such a restriction. The only one who everyone agrees is available now is Frederick Henry, but everyone agrees, rightly or wrongly, that he is not very good. On the other hand, everyone agrees that the defendant is very good. I accept that performing artists are likely to be vulnerable as a group, particularly at the start of their careers when building up their reputations, and that this was the defendant's position in December 2014, contrary to some of the suggestions that he makes in his evidence.

The more employable he is outside Blackpool the more reasonable it is to require him to work elsewhere while the show is being recreated without him and established. I consider that, on the assessment made by all the witnesses of the defendant's ability, he is and was in December 2014, employable outside Blackpool and that, had he set about making arrangements for work away from Blackpool in December 2015 rather than approaching Mr Armitage, he would probably have succeeded in making a satisfactory arrangement somewhere else.

I have referred to the text exchange of 23/24 November as good evidence of the true nature of the bargaining position between the parties on face value. I accept, of course, that the bargaining position would have improved so far as the claimant is concerned because of the success of the 2015 season, but my observations about that text exchange are related to what I have referred to as the absence of any good evidence of any weakness in the claimant's particular bargaining position. I am not willing to infer from the difficulties which present themselves to lots of people beginning a show business career, that the same problems afflicted this defendant. He was at all times a very good act in a very small business.

I place no reliance on an email from HR Entertainments to Brenda Chance where an agent called Tony Joe says he can fill up the defendant's dates for him. This is not, I make it clear, because I find that that exchange was dishonest; it is because I have not heard from either party to it. It is simply an email exchange which, on its own, without further explanation, carries very little weight.

I have, therefore, concluded, after a careful analysis of the factual matrix within which this clause was agreed, that it is a valid clause and not unenforceable. Such a clause will undoubtedly be declared invalid in other factual circumstances, but in this case, it appears to me that it is reasonable for the reasons which I have attempted to explain.

This has been called laches which is the technical term for the loss of an equity remedy because of the claimant's conduct in delaying in seeking it from the court. I was helpfully referred to Spry on Equitable Remedies at pages 446 and following. On that page the editor says this:

The authors make it clear that the passage of time which may amount to relevant delay may be shorter in some circumstances than in others. At page 449 they go on to say:

That passage continues by making clear that the position of third parties who may have been affected by the delay in question is relevant also.

Mr Roe relies on the well-known cases of Lindsay Petroleum Co v Herd (1874) LR 5 PC 221 and the more recent decision of the House of Lords in Fisher v Brooker [2009] UKHL 41; [2009] 1 WLR 1764 and quotes in particular from paragraph 64, where Lord Neuberger said:

That sufficiently explains the law for present purposes.

I have touched upon above the advice given by Mr Byers and the evidence given by Mr Armitage and by the defendant about their understanding of the lawfulness of the contract. The factual background to the history of the proceedings is clear from the correspondence which has passed between the parties. I left the narrative earlier in this judgment with the Facebook post from the Kings and Queen show shared by the defendant on 4 January 2016. On that same day, no doubt after becoming aware of it, at 1.15 in the afternoon, Brenda Chance emailed the defendant, reminding him of the terms of the contract and raising a question about two other dates which had been separately arranged for the defendant to appear at The Sands.

Correspondence went on throughout the 4th in which the defendant and Mrs Chance explain their respective positions. Among other things the defendant said that he "would not have made a decision to perform at the Pier without seeking legal advice first". That was said at 6.05 pm. The decision was taken on or before 3 January 2016. Mr Byers' first record of any involvement in this dispute emerged during the course of the trial and it is dated 4 January 2016. Mr Byers is a trade union official and not a lawyer. He is highly experienced in disputes between entertainers and those who retain them and his advice is no doubt worth having. I do not think there is any significance to the reference in the email from the defendant to "legal advice", what is significant is the date. Mr Byers has recorded that on 4 January 2016, Mr Clayton Mark rang him, explained that there was a dispute in which he was involved as a producer and, because Equity does not represent producers, he advised Mr Mark to get the member, Mr Harrison, to contact him, Mr Byers. That did not happen on that day. Mr Byers' records reveal further that on 7 January Mr Mark rang again and Mr Byers again said that he needed to speak with the member and this time added that he needed to see the contract. He was told that it was an Equity contract and said that he did not recognise the barring clause. Well of course he would not because there is not a barring clause in the standard form Equity contract.

That appears to be the first time when Mr Byers expressed any opinion, certainly as far as his record is concerned, and his notes include a further reference "spoke to Gary Harrison about Legends' contract. Explained I didn't recognise barring clause from VLEC Act as known contract. Told him why I thought it unenforceable." It seems obvious from the first two notes which are dated that that conversation must postdate 7 January, or at least must postdate the conversation between Mr Mark and Mr Byers of that date. In fact, it appears that Mr Harrison introduced himself to Mr Byers by sending him an email on 7 January. So I infer that that was the first time that he spoke to Mr Byers. I have already said that I consider that Mr Byers' advice is unlikely at that stage to have been dogmatic. It is clear from the note that before he saw the contract he thought it was unenforceable, but that was principally because of its length. An enquiry as to enforceability in these circumstances requires sight of the contract, but it also requires knowledge of the factual matrix within which the contract was concluded. Mr Byers struck me as a careful and reliable witness and adviser. In my judgment, it must have been obvious to anyone listening properly to what he was saying, that he was offering an opinion as to what a court might make of the covenant rather than any form of guarantee.

As I have already recorded, the defendant went on to sign a contract with Mr Armitage before Mr Byers had seen the contract, although he had said in evidence that he signed the contract to do the 2016 summer season with the Kings and Queen show on advice. Mr Armitage also said that he went on because of the advice of Mr Byers. In my judgment, this was not a reasonable approach. It was certainly reasonable for the defendant to rely on the advice of his union, who would seek professional legal advice when they thought it necessary to do so, but it is not at all reasonable, in my judgment, for a commercial operation such as Mr Armitage's business to proceed on the basis of second-hand advice from a trade union official about a contract which he had not seen.

It is quite obvious from an email from Mr Clayton Mark to Mr Byers on 22 January that he was seeking some form of guarantee that it would be safe to go on with preparing the show for its opening night at Easter. He was worried that the claimant would try to stop Mr Harrison going on stage "just before we open". It is also clear that they did in fact go ahead without any such guarantee.

After the defendant's contract was signed, the correspondence continued. To this date, neither side had given an inch. On 11 February, Mr Byers set out in his email why he thought the covenant was unenforceable. He received a response simply saying that it was enforceable without any specific grappling with the contentions that he had made. But, in my judgment, the next really significant event was a letter written by the solicitors acting for the claimant on 18 March 2016.

The first performance under the new contract by the defendant was due on 25 March. On the 18th, the claimant's solicitors set out its case that the covenant was binding. They gave an ultimatum. They said that they wanted:

A copy of that letter was sent to Mr. Armitage. In the event, nothing happened. The ultimatum expired and no proceedings were instituted at that stage. What happened was that on 24 March Mr Swan intervened and sought to persuade the defendant to back down. He did that by an email. The defendant responded that he was not going to by email of 25 March and Mr Swan had another go by his email of 26 March. By that time, of course, the first performance had taken place.

Then everything went quiet until new solicitors instructed by Mr Swan (or at least funded by Mr Swan) wrote a letter on 20 May 2016, two months later, which failed to resolve the matter with the result that proceedings were issued and an injunction claimed on 9 June.

Mr Trevor Chance was asked about the conduct of these proceedings and he said that the claimant had not issued proceedings acting in the early part of the period to which I have referred because it had no money or not enough money, to fund expensive litigation at least. It only therefore became possible for the claimant to take proceedings when Mr Swan came on board and agreed to fund the action. That had clearly happened by 18 March 2016 because the letter of that date says so. I accept that before that funding became available it was not unreasonable for the claimant to hope that its persuasion would have the effect of causing the defendant and the Kings and Queen show to change their minds. One of Mr Byers' emails which refuses to disclose the defendant's employer for the 2016 summer season, merely confirms that the defendant had found a new contract and left open the possibility that the defendant had decided not to work for the Kings and Queen show but had gone somewhere else.

Mr Byers gave evidence that he had had a conversation with Mr Angel, who was at that time the claimant's solicitor, at around that time during which Mr Angel was principally interested in finding out whether the defendant had signed a contract with the Kings and Queen show. It appears, therefore, that the claimant was still hopeful that this threat may never be carried out. That was not in reality a very well-founded hope because Mr Armitage had decided, even at this stage, not to seek any legal advice and was working on the basis that, because the contract was not in the Equity-approved form, it might somehow be held to be entirely invalid. That proposition has never been advanced on behalf of the defendant in these proceedings and is, by common consent therefore, wrong.

Equity may well have grounds for complaint about the alteration of the front page of the contract and if an Equity standard form is altered, it may render the arbitration scheme, for example, inoperable. But the contractual term with which I am concerned was not in the standard form part of the contract which is Equity approved; it was in the bespoke terms and conditions added by the claimant without any suggestion that Equity had ever had anything to do with them and any objective reader of the contractual documentation in the form in which I have described it, would rapidly see that that was the case.

At all events, for whatever reason, Mr Byers' suggestion that arbitration might resolve was not accepted by the claimants and the defendants had decided to take the risk of bashing on regardless. Mr Armitage explained that that was a business decision and that he takes big risks every day because that is the nature of his business. For those reasons the matter did not resolve, but it did go quiet between 18 March 2016 and the letter of 20 May and then the subsequent issue of proceedings.

It is that period of delay which has attracted particular attention in the submissions of Mr Egan and which, in my judgment, warrants careful attention by the court also. First of all, I have to decide whether it is reasonable and secondly, if I find that it is unreasonable, I have to decide whether it would be unjust to grant the injunction now sought, even though the covenant is enforceable.

In my judgment, the delay was unreasonable and it would not be just to grant an injunction now. I will explain why that is. First, it seems to me that the defendant himself suffers no prejudice from this delay by the claimants. He has caused his own problems by taking work contrary to what I have held to be a valid clause. He did that, no doubt, because of the ejection of Frederick Henry from the Kings and Queen Rock show but he stood to lose the summer season at that show at whatever stage during the currency of the covenant the claimant sought to enforce it. He has in fact been able to earn at Easter and more recently because I dismissed the claim for an interim injunction.

More concerning is the fact that these proceedings have, in my judgment, developed into a battle between the two venues and the producers of their shows. I find, as I have said, no fault with the claimant's conduct up to 18 March 2016 but the question is: why were proceedings not started on the 24th in time to stop the first performance or at least very soon after that date? The ultimatum was designed to expire before the first performance and had done so without success. I have had no explanation from anyone by way of evidence of this conduct, although the delay issue is raised in the Defence of the defendant. These proceedings have taken just over one month to resolve. I find that, if an injunction had been applied for on 24 March 2016, it would have been granted. I can say that because I refused an interim injunction myself and only on the ground of delay. It follows that, absent the delay, the injunction would have been granted.

If it had been granted on 24 March or soon thereafter, the first performance might or might not have gone ahead, but the Kings and Queen show would have had over three months to prepare for its summer season without the defendant. I find that they would probably have been able to cope. I consider that the evidence that they gave of the time that it would take to reconstruct a show was probably somewhat pessimistic. But, even Mr Armitage thought that it could be done in two months and, on that basis, if an injunction had been applied for and granted at the time when the application should have been made, a viable show could still have gone on. I accept the evidence of Mr Armitage and Mr Mark that if an injunction is granted now it is by no means certain that anything viable will be possible.

They have no plan and, although they accept that they may be able to cobble something together, they are not optimistic that the venue would accept it. The venue has an enduring reputation which seeks also repeat business and must, if it hopes to succeed, offer entertainment at an acceptable level. In addition, there is the administrative and other work required to source a suitable performer and then to recast the show to include him or her. It follows from the claimant's evidence about how difficult and costly that process was for them when they brought the defendant into their show in 2015, that I should accept the evidence of Mr Armitage and Mr Mark on this issue.

In the absence of any explanation of the two month pause, the only inference which I can draw is that the injunction was used not simply as a protection of the claimant's rights but as a weapon by Mr Swan who is funding the claim and brings it using his own solicitors, to cause avoidable damage, loss and disruption to the Central Pier. The delay of about two and a half months before proceedings were issued after the expiry of the ultimatum is not a long time in terms of the defence of laches but, in my judgment, it is not the length of the delay which matters but the circumstances in which it occurred and, to a significant extent, the reason why it occurred.

The claimants and Mr Swan knew that Kings and Queen was going ahead with Mr Harrison because he had performed at Easter and because his name and face were being publicised. All this was happening just up the road. In my judgment, it is clear that an injunction which is deliberately timed to damage others may be refused on discretionary grounds if that was avoidable by sensible and proper steps.

The Pier or the Kings and Queen show cannot be said to have relied to their detriment on inaction until the expiry of the ultimatum and in any event have only themselves to blame for the situation which would have confronted them had a prompt application been made. They should have taken legal advice. A lawyer may well have said that there is an argument that the covenant is unenforceable but a lawyer would also certainly have said that they should stop fixating on the fact that changes to a template had been made without permission because that was no guarantee of success at all. The lawyer would therefore have said that there was a risk that the covenant might be enforced with an injunction.

But be that as it may, as I have said, their evidence was that they knew they were taking a risk and they decided to do so anyway. They cannot complain if they choose to gamble in an ill-informed way and lose. What they can complain about is that they read the events following the expiry of the ultimatum as meaning that the threats had been all bluster and for two months continued to invest money and, more importantly time, in a show with the defendant when, if the claimants had behaved without the collateral motive of increasing the damage caused to its competition, they would not have done so.

I have no doubt that the livelihoods of others, for example, the Invincible Dancers and some at least of the staff at Central Pier, would not have been affected at all by an injunction granted at the right time and I have no doubt that they will be significantly harmed if an injunction is granted. It will inevitably cause a significant delay while something else is put together and there is a strong risk that nothing acceptable to the venue will be put together in time.

Those people, other performers, technicians, front of house staff and the like, are all entirely blameless. Equally, the reputational damage to Mr Mark of which he speaks in his witness statement, would have been minimised by an early injunction. Although he is not entirely blameless, because he was aware of the risk, he is not the one who calls the shots on the business and financial side of the Kings and Queen show. That is Mr Armitage. He is actually a performer whose first effort at direction this is. A little naivety about how to manage legal disputes is far more forgivable in his case than it is in the case of Mr Armitage, who is a much more experienced businessman.

For these reasons, I consider that the grant of an injunction now on July 12 2016 would not be equitable and I decline to make the order sought, which I would have made as an interim injunction if I had been asked to do so at the end of March or the beginning of April. Therefore, the claimant's claim for an injunction is dismissed.