Airdrie sheriff dismisses radio station’s claim against glamping business for unpaid sums under advertising contract

About this case:

• Citation:
  [2025] SC AIR 37
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Anthony McGlennan

Claimant Go Radio Ltd raised the claim against Endrick Escape Ltd, a start-up business run by sole director Mark Hamill, for payment of two sums it alleged were due under their unwritten contract of August 2023. The respondent maintained that it was entitled to cancel the agreement and that aside from that the provision of services had been inadequate.

The case was heard by Sheriff Anthony McGlennan at Airdrie Sheriff Court. Nimmo, solicitor, appeared for the claimant while the father of the respondent’s director, Mr Hamill, appeared for the respondent as a lay representative.

Not part of agreement

On 21 August 2023, Mark Hamill entered into an agreement with the claimant to purchase advertising services with them. He was encouraged to do so by the respondent’s employee, Emma Donaldson-Tonner, who used the same gym as Mr Hamill. Ms Donaldson-Tonner, who was being performance managed by the claimant at the time, advised Mr Hamill that the respondent would be entitled to cancel the agreement for any reason provided that it did so in the first 28 days of the agreement.

Ahead of the first advertising broadcast, drafts of the ten-second radio “tags” were approved by the respondent. These tags incorrectly referred to the respondent as “Endrick Escapes” in the plural, which was the name of another business operating a self-catering accommodation site in the same area that the respondent considered to be a competitor. Mr Hamill emailed the claimant shortly after the tags were first broadcast to make complaint and said that at that stage the only solution was a refund and cancellation of further advertising.

It was the claimant’s position that Mr Hamill’s email of 4 September 2023 was not sufficient to cancel the contract per the terms and conditions, which were not explained fully to Mr Hamill by Ms Donaldson-Tonner and required cancellation by recorded delivery letter. Alternatively, the cancellation had been reversed at a meeting on 13 September 2023 between Mr Hamill and the claimant’s sales manager Ms Hextall.

The respondent argued that the terms and conditions imposing a more stringent cancellation process had not been part of the agreement reached. While the media agreement stated that the agreement was made subject to the claimant’s terms and conditions, it did not state what those terms were or where they were located. Ms Donaldson-Tonner had offered that the agreement could be cancelled for any reason within 28 days. Additionally, the provision of services was deficient, as there had been no provision of links on the claimant’s social media page, only on their website.

Entirely different understanding

In his decision, Sheriff McGlennan said of the alleged breaches of contract: “It was not disputed that the tags for the first broadcast contained the error complained of. However, Mr Hamill had approved their wording by email. When the mistake had been highlighted, the claimant had the tags re-recorded to correctly refer to the respondent. There was no detailed evidence as to the extent to which Endrick Escapes was a competitor. The error made did not constitute a material breach of the agreement.”

He continued: “Viewed objectively the agreement upon the links from the claimant’s online presence to that of the respondent is that they would emanate only from the claimant’s website. I accepted the evidence, lightly disputed if at all, that This is Go was the designation of the claimant’s website, and did not refer to their social media platforms. I therefore rejected the submission that the claimant’s provision of linkage constituted failure to meet its obligations in terms of agreement.”

Assessing whether the respondent had the right to cancel, the sheriff noted: “From the fact that a media agreement was sent, I was asked to infer that the terms and conditions were also sent to the respondent, or otherwise made clear. They were thus incorporated into the agreement. The agreement was subject to them. I felt unable to draw that inference. I found there to be evidence which pushed me to the conclusion that Ms Donaldson-Tonner had not conducted the sale of advertising services to the respondent in accordance with what Ms Hextall would expect and instead had done so in the way Mr Hamill said.”

He added: “I accepted Mr Hamill’s evidence as to what he was, and was not, told about the cancellation right and about the terms and conditions. The fact that the terms and conditions were said in the media agreement to be incorporated did not mean that they were agreed upon in circumstances where Mr Hamill was not told what they were or where they could be found, and where as far as cancellation was concerned he was given an entirely different understanding of what the respondent’s entitlement was.”

Sheriff McGlennan concluded on the purported withdrawal of the cancellation: “[Ms Hextall] was attempting to repair relations with a disgruntled client. She had made in-roads in that regard and had piqued some interest on the part of Mr Hamill about sponsoring a competition prize, but there had not been a withdrawal of the cancellation issued on 4 September 2023 When questioned Ms Hextall pointed to the subsequent email correspondence with Mr Hamill. This went on for many weeks after 13 September 2023. This, she said, supported the fact that any purported cancellation had been withdrawn. I could not agree that these exchanges supported that contention.”

The sheriff therefore found that the sum claimed for was not due by the respondent, and dismissed the claim.